Kerala High Court
Sam Daniel vs A.A.Jose on 14 January, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941
MACA.No.1501 OF 2010
AGAINST THE AWARD IN OPMV 1647/2005 DATED 13-08-2009 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/PETITIONER IN OP(MV):
SAM DANIEL, S/O.T.L.DANIEL,
THAYYIL HOUSE, PIPE LINE ROAD,
CHANGAMPUZHA NAGAR P.O., THRIKKAKARA VILLAGE,,
KANAYANNUR TALUK, ERNAKULAM DISTRICT.
BY ADVS.
SRI.P.V.BABY
SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS IN OP(MV):
1 A.A.JOSE
S/O A.P. ANTONY, ALUKKAL HOUSE, CROSS BAZAR ROAD,,
IRINJALAKUDA, THRISSUR - 682 121.
2 HDFC CHUBB GENERAL INSURANCE COMPANY LTD.,
5TH FLOOR, EXPRESS TOWERS,, NARIMAN POINT,
MUMBAI - 21.
R2 BY ADV. K.S.SANTHI, STANDING COUNSEL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
14.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA.No.1501 OF 2010
2
JUDGMENT
The appellant is the claimant in O.P(MV)No.1647 of 2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 12.01.2005, while he was travelling in a motorcar bearing registration No.KL-07/W-9626. At the place of accident, the said car was hit by another car bearing registration No.KL-08/Y-6966, owned and driven by the 1 st respondent and insured with the 2nd respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of offending motorcar by the 1 st respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/- under various heads.
2. Before the Tribunal, the 1st respondent filed written statement admitting the accident; however denying negligence alleged against him.
3. The 2nd respondent insurer filed written statement admitting insurance coverage of the offending car involved in the accident; however, denying negligence alleged against its driver. MACA.No.1501 OF 2010 3 The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive.
4. Before the Tribunal, the claim petition was tried along with connected matter. Exts.A1 to A16 were marked on the side of the claimants and the appellant was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence.
5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the offending car by its driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,42,500/-, together with interest at the rate of 7.5% per annum from the date of petition till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award.
6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this MACA.No.1501 OF 2010 4 appeal.
7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 2 nd respondent/insurer.
8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads.
9. In State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484] the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance.
10. In National Insurance Company Ltd. v. Pranay MACA.No.1501 OF 2010 5 Sethi [(2017) 16 SCC 680] a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability.
11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus;
Transportation, hospitalization, attendant 5,000
expenses, extra nourishment and
damage to clothings
Loss of earnings 7,500
Treatment expenses 50,000
Pain and suffering 25,000
Discomfort & inconveniences 10,000
Permanent disability 45,000
TOTAL 142,500
12. The accident occurred on 12.01.2005. At the time of accident, the appellant was aged 49 years. The appellant claimed a MACA.No.1501 OF 2010 6 monthly income of Rs.9,000/- as a contractor. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has mounted the box as PW1. The Tribunal fixed the monthly income notionally as Rs.2,500/-, for the purpose of assessing compensation under various heads.
13. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may MACA.No.1501 OF 2010 7 proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time.
14. In Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], taking note of the earlier decision in Ramachandrappa's case (supra), the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month.
15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2005, and taking note of the fixation of notional monthly MACA.No.1501 OF 2010 8 income by the Apex Court in the decisions referred to supra, and also the evidence of the appellant as PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.5,250/-, for the purpose of assessing compensation under various heads.
16. The document marked as Ext.A5 is the wound certificate and Exts.A6 and A7 are the discharge summaries. As per medical records, the appellant sustained inter trochanteric fracture of right femur; abrasion on left leg, right knee and left knee; pain and tenderness on right thigh left shoulder; and lacerated wound on the forehead. Dynamic hip screw fixation of right hip was done under spinal anesthesia. The appellant had undergone inpatient treatment for a period of 16 days in two different spells. Ext.A9 series of medical bills are for a sum of Rs.50,096/-.
17. The document marked as Ext.A8 is the disability certificate issued by the Medical Board at General Hospital, Ernakulam, in which the permanent disability of the appellant, on account of the injuries sustained in the accident is assessed as 19%. A per Ext.A8, the appellant is having restrictions in movements of hip and knee and fracture of trochanter was MACA.No.1501 OF 2010 9 malunited. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads.
18. Towards loss of earning, the Tribunal awarded a sum of Rs.7,500/-, at the rate of Rs.2,500/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.5,250/-, the compensation under the head loss of earning is re-fixed as Rs.21,000/- (5,250 x
4), resulting an additional compensation of Rs.13,500/- (21,000 - 7,500).
19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 16 days. The accident is of the year 2005. Towards transportation, hospitalisation, attendant expenses, extra nourishment and damage to clothing, the Tribunal awarded a consolidated amount of Rs.5,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical MACA.No.1501 OF 2010 10 records, the compensation towards transportation expense is re- fixed as Rs.2,000/-; extra nourishment is re-fixed as Rs.1,600/- (100 x 16); attendant charges is re-fixed as Rs.2,400/- (150 x
16); and damage to clothing is re-fixed as Rs.750/-, resulting an additional compensation of Rs.1,750/- [(2,000 + 1,600 + 2,400 + 750) - 5,000].
20. Towards medical expenses, the Tribunal awarded a sum of Rs.50,000/-, covered by Ext.A9 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal.
21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head.
22. In Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], the Apex Court, after referring to its earlier MACA.No.1501 OF 2010 11 decisions in Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176], U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362] and New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720] held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying Susamma Thomas, Trilok Chandra and Charlie], which starts with an operative multiplier of 18 [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of 17 for 26 to 30 years, multiplier of 16 for 31 to 35 years, multiplier of 15 for 36 to 40 years, multiplier of 14 for 41 to 45 years, and multiplier of 13 for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of 11 for 51 to 55 years, multiplier of 9 for 56 to 60 years, multiplier of 7 for 61 to 65 years and multiplier of 5 for 66 to 70 years.
23. In National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place MACA.No.1501 OF 2010 12 in paragraph 19 of Sarla Verma, read with paragraph 42 of the said judgment.
24. In the instant case, as on the date of accident, the appellant was aged 49 years. In the light of the decisions of the Apex Court in Sarla Verma's case and Pranay Sethi's case referred to supra, the multiplier of 8 applied by the Tribunal is not correct and the proper multiplier to be applied is 13.
25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.45,000/-. Since the monthly income of the appellant is re-fixed notionally as Rs.5,250/-, applying the multiplier of 13 applicable to the age group of the appellant and the percentage of permanent disability as 19%, the compensation under the head permanent disability is re-fixed as Rs.1,55,610/- (5,250 x 12 x 13 x 19/100), resulting an additional compensation of Rs.1,10,610/- (1,55,610 - 45,000).
26. Towards discomforts and inconveniences, the Tribunal awarded a sum of Rs.10,000/-. In Ext.A8 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 19%. Considering the nature of injuries sustained and 19% permanent disability on MACA.No.1501 OF 2010 13 account of those injuries, as assessed in Ext.A8 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of Rs.10,000/- (20,000 - 10,000).
In the result, the appellant/claimant will be entitled for payment of an additional compensation of Rs.1,35,860/- (Rupees one lakh thirty five thousand eight hundred and sixty only) (13,500 + 1,750 + 1,10,610 + 10,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The 2 nd respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide his bank account details before the MACA.No.1501 OF 2010 14 Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of certified copy of this judgment.
This appeal is disposed of as above. No order as to costs.
Sd/-
ANIL K.NARENDRAN
JV JUDGE