Kerala High CourtN. Sivadas vs * 1 Jayan P.P on 12 February, 2020Author:Anil K.NarendranBench:Anil K.NarendranIN THE HIGH COURT OF KERALA AT ERNAKULAM\n\n                                 PRESENT\n\n               THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN\n\n   WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941\n\n                           MACA.No.846 OF 2013\n\nAGAINST THE AWARD IN O.P.(MV) NO.964/2007 OF MOTOR ACCIDENT CLAIMS\nTRIBUNAL MUVATTUPUZHA\n\nAPPELLANT/PETITIONER:\n\n                N. SIVADAS,\n                S/O N.S.NARAYANA MENON,\n                RESIDING AT SHARAVANAM HOUSE @ OTTOLIL PARAMBIL,\n                L.B.S. ROAD, THIRUVANKULAM, KOCHI-682 305 BEDRIDDEN\n                REPRESENTED BY HIS WIFE K.G.VIJAYAKUMARI,\n                W/O N.SIVADAS, SHARAVANAM HOUSE @ OTTOLIL PARAMBIL,\n                L.B.S. ROAD, THIRUVANKULAM, KOCHI-682 305\n                AS NEXT FRIEND AND LEGAL GUARDIAN.\n\n                BY ADVS.SMT.ANEY PAUL\n                        SRI.PHILIP M. PRASAD\n\nRESPONDENTS/RESPONDENTS:\n\n   *   1        JAYAN P.P.,\n                S/O PADMANABHAN,\n                PALATTU HOUSE,\n                20/2673B, PALLURUTHY P.O., PERUMPADAPPU,\n                ERNAKULAM, PIN 682 005.\n\n   *   2        ANZAR K.M.,\n                S/O KUNJU MOHEMMED,\n                5/323, VALIAPARAMBIL HOUSE,\n                MATTANCHERRY VILLAGE,\n                PUTHIYAROAD JUNCTION, KOCHI-2.\n\n           *    1ST AND 2ND RESPONDENTS ARE DELETED FROM THE PARTY\n                ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER\n                DATED 22.08.2019 IN I.A.NO.1 OF 2019.\n\n       3        THE BRANCH MANAGER,\n                THE BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,\n                II FLOOR, FINANCE TOWER,\n                KALOOR, ERNAKULAM-682 017.\n\n                R1, R3 BY ADV. SRI.THOMAS M.JACOB\n\n     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON\n12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:\n MACA No.846 of 2013\n                                           -2-\n\n                                       JUDGMENTThe appellant is the claimant in O.P.(MV) No.964 of 2007\n\n      on   the    file   of      the   Motor      Accidents    Claims    Tribunal,\n\n      Muvattupuzha, a claim petition filed underSection 166of the\n\n      Motor Vehicles Act, 1988, claiming compensation on account\n\n      of the injuries sustained by him in a motor accident, which\n\n      occurred on 24.03.2007, while he was riding a motorcycle\n\n      bearing    registration      No.KL-07/AJ-4843.          At   the   place   of\n\n      accident, the motorcycle was hit by a pickup van bearing\n\n      registration No.KL-7/AX-3687 owned by the 1st respondent,\n\n      driven by the 2nd respondent and insured with the 3rd\n\n      respondent. In the accident, he sustained injuries. Alleging\n\n      that the accident occurred due to the rash and negligent\n\n      driving of pickup van by the 2 nd respondent driver, claim\n\n      petition   was     filed    before    the    Tribunal   claiming    a   total\n\n      compensation of Rs.10,00,000/- under various heads.2.    Before the Tribunal, respondents 1 and 2 remained\n\n      absent and they were set ex-parte.3.    The 3rd respondent insurer filed written statement\n\n      admitting insurance coverage of the pickup van involved in the\n\n      accident; however, denying involvement of that vehicle in theMACA No.846 of 2013-3-said accident. The insurer contended that the accident\n\n      occurred due to the rash and negligent riding of motorcycle by\n\n      the appellant. The insurer disputed the age, occupation,\n\n      monthly income, etc. stated in the claim petition. The insurer\n\n      contended that the compensation claimed is highly excessive.4.    Before the Tribunal, Exts.A1 to A19 were marked\n\n      on the side of the appellant/claimant and PW1 was examined\n\n      to prove Exts.A12 to A14 salary/leave certificates. On the side\n\n      of the respondents, the insurance policy of the offending\n\n      vehicle was marked as Ext.B1. The document marked as\n\n      Ext.C1 is the disability certificate issued by the Medical Board\n\n      at T.D. Medical College Hospital, Alappuzha assessing the\n\n      permanent disability of the appellant/claimant, on account of\n\n      the injuries sustained in the accident.5.    After considering the pleadings and materials on\n\n      record, the Tribunal arrived at a conclusion that the accident\n\n      occurred due to the rash and negligent driving of the pickup\n\n      van by its driver. Since insurance coverage of the said vehicle\n\n      was not in dispute, the insurer was held liable to indemnify\n\n      the insured. Under various heads, the Tribunal awarded a totalMACA No.846 of 2013-4-compensation of Rs.5,95,000/-, together with interest at the\n\n      rate of 7% per annum from the date of petition, i.e.,\n\n      14.09.2007, till realisation, with proportionate cost, and the\n\n      3rd respondent insurer was directed to satisfy the award.6.        Dissatisfied with the quantum of compensation\n\n      awarded by the Tribunal, the appellant/claimant is before this\n\n      Court in this appeal.7.        Heard      the   learned    counsel   for   the    appellant/\n\n      claimant and also the learned Standing Counsel for the 3 rd\n\n      respondent/insurer.8.        The issue that arises for consideration in this\n\n      appeal     is    as   to    whether     the   appellant     is   entitled   for\n\n      enhancement of the compensation awarded by the Tribunal\n\n      under various heads.9.InState of Haryana v. Jasbir Kaur[(2003) 7\n\n      SCC 484] the Apex Court held that the Tribunal underSection\n\n      168of the Motor Vehicles Act, 1988 is required to make an\n\n      award determining the amount of compensation which is to be\n\n      in the real sense 'damages' which in turn appears to it to be\n\n      'just and reasonable'. It has to be borne in mind thatMACA No.846 of 2013-5-compensation for loss of limbs or life can hardly be weighed in\n\n      golden scales. But at the same time it has be to be borne in\n\n      mind that the compensation is not expected to be a windfall\n\n      for the victim. Statutory provisions clearly indicate that the\n\n      compensation must be 'just' and it cannot be a bonanza; not a\n\n      source of profit; but the same should not be a pittance.10.InNational Insurance Company Ltd. v. Pranay\n\n      Sethi[(2017) 16 SCC 680] a Constitution Bench of the\n\n      Apex Court held that,Section 168of the Motor Vehicles Act,\n\n      1988 deals with the concept of 'just compensation' and the\n\n      same has to be determined on the foundation of fairness,\n\n      reasonableness and equitability on acceptable legal standard\n\n      because such determination can never be in arithmetical\n\n      exactitude. It can never be perfect. The aim is to achieve an\n\n      acceptable degree of proximity to arithmetical precision on the\n\n      basis of materials brought on record in an individual case. The\n\n      conception of 'just compensation' has to be viewed through\n\n      the prism of fairness, reasonableness and non-violation of the\n\n      principle of equitability.11.   In the instant case, the compensation awarded byMACA No.846 of 2013-6-the Tribunal under various heads reads thus;Sl.                Head                         Amount         Amount\n       No.                                             claimed        allowed\n      1      Loss of earnings                            48,000/-       38,400/-\n      2      Pain and sufferings                        1,00,000/-      50,000/-\n      3      Loss of amenities                          1,00,000/-      40,000/-\n      4      Bystander expenses                          50,000/-           5,500/-\n      5      Extra nourishment charges                   25,000/-           5,000/-\n      6      Transportation charges                      10,000/-           3,000/-\n      7      Medical expenses                           2,50,000/-     2,19,504/-\n      8      Compensation       for   permanent        10,00,000/-     2,33,472/-\n             disability\n                          TOTAL                    10,00,000/-        5,94,876/-12.   The accident occurred on 24.03.2007. At the time\n\n      of accident, the appellant was aged 37 years. The appellant\n\n      claimed      a    monthly       income      of    Rs.12,000/-    as     Sales\n\n      Representative of Alappat Brothers. In order to prove monthly\n\n      income, the appellant produced Exts.A12 and A14 salary\n\n      certificates, Ext.A13 leave certificate, which were marked\n\n      through PW1. The Tribunal found that the monthly income\n\n      shown in Ext.A12 as Rs.9,408/- depends on the quantum of\n\n      sales effected by the appellant in a particular month. Since the\n\n      salary shown in Ext.A12 is Rs.3,200/-, the Tribunal took the\n\n      said amount as the monthly income of the appellant.13.InRamachandrappa                 v.   Manager,        Royal\n\n      Sundaram Alliance Insurance Company Limited[(2011)MACA No.846 of 2013-7-13 SCC 236] the Apex Court reckoned the monthly income of\n\n      a coolie (manual labourer), who met with a road accident in\n\n      the year 2004, at the age of 35 years, notionally as\n\n      Rs.4,500/-. The Apex Court held that, the claimant who was\n\n      working as a coolie cannot be expected to produce any\n\n      documentary evidence to substantiate his claim. In the\n\n      absence of any other evidence contrary to the claim made by\n\n      the claimant, in the facts of the said case, the Tribunal should\n\n      have accepted the claim of the claimant. The Apex Court\n\n      made it clear that, in all cases and in all circumstances, the\n\n      Tribunal need not accept the claim of the claimant, in the\n\n      absence of supporting material. It depends on the facts of\n\n      each case. In a given case, if the claim made is so exorbitant\n\n      or if the claim made is contrary to ground realities, the\n\n      Tribunal may not accept the claim and may proceed to\n\n      determine the possible income by resorting to some guess\n\n      work, which may include the ground realities prevailing at the\n\n      relevant point of time.14.InSyed Sadiq v. Divisional Manager, United\n\n      India Insurance Co. Ltd.[(2014) 2 SCC 735], taking noteMACA No.846 of 2013-8-of the earlier decision inRamachandrappa's case (supra),\n\n      the Apex Court reckoned the monthly income of a vegetable\n\n      vendor, who met with a road accident in the year 2008, at the\n\n      age of 24 years, notionally as Rs.6,500/-. Inthe said decision,\n\n      the Apex Court held that, a labourer in an unorganised sector\n\n      doing his own business cannot be expected to produce\n\n      documents to prove his monthly income. Therefore, there was\n\n      no reason for the Tribunal and the High Court to ask for\n\n      evidence to prove his monthly income. Going by the state of\n\n      economy prevailing at that time and the rising prices in\n\n      agricultural products, the Apex Court accepted his case that a\n\n      vegetable vendor is reasonably capable of earning 6,500/- per\n\n      month.15.   In the absence of any reliable evidence, considering\n\n      the economic conditions prevailing at the time of accident,\n\n      i.e., during the year 2007, and taking note of the fixation of\n\n      notional monthly income by the Apex Court in the decisions\n\n      referred to supra and also the evidence of PW1, this Court\n\n      deem it appropriate to re-fix the monthly income of the\n\n      appellant       notionally   as   Rs.6,250/-,   for   the   purpose   ofMACA No.846 of 2013-9-assessing compensation under various heads.16.   The document marked as Ext.A7 is the discharge\n\n      summary issued from MOSC Medical College Hospital. Other\n\n      medical records are Exts.A8 to A10 and Ext.A15 to A17. As\n\n      evident from medical records, in the accident, the appellant\n\n      sustained bifrontal multiple contusion; tentorial subarachnoid\n\n      hemorrhage; intraventricular bleed;      compound depressed\n\n      fracture frontal bone; fracutre on right femur; fracture on\n\n      right tibia; open injury knee; left clavicle fracture; and\n\n      fracture on right 4th metacarpel. He had undergone inpatient\n\n      treatment for a total period of 53 days, under 5 different\n\n      spells. Exts.A11 and A19 series of medical bills are for a sum\n\n      of Rs.2,19,504/-.17.   The document marked as Ext.C1 is the disability\n\n      certificate issued by the Medical Board at T.D. Medical College\n\n      Hospital, Alappuzha, in which the permanent disability of the\n\n      appellant, on account of the injuries sustained in the accident,\n\n      is assessed as 38%. The Tribunal accepted the percentage of\n\n      permanent disability assessed by the Medical Board, for the\n\n      purpose of awarding compensation under various heads.MACA No.846 of 2013-10-18.   Towards loss of earning, the Tribunal awarded a\n\n      sum of Rs.38,400/-, at the rate of Rs.3,200/- for a period of\n\n      12 months. Considering the nature of injuries sustained and\n\n      the treatment the appellant had undergone, as borne out from\n\n      medical records, the period of 12 months fixed by the Tribunal\n\n      for granting loss of earning is just and reasonable. Since the\n\n      monthly income of the appellant is re-fixed notionally as\n\n      Rs.6,250/-, the compensation under the head loss of earning\n\n      is re-fixed as Rs.75,000/- (6,250 x 12), resulting an additional\n\n      compensation of Rs.36,600/- (75,000 - 38,400).19.   On account of the injuries sustained in the accident,\n\n      the appellant had undergone inpatient treatment for 53 days\n\n      under 5 different spells. The accident is of the year 2007.\n\n      Towards transportation to hospital, the Tribunal awarded a\n\n      sum    of    Rs.3,000/-.     Considering   the   nature     of   injuries\n\n      sustained and the treatment the appellant had undergone, as\n\n      borne out from medical records, the compensation under this\n\n      head    is   re-fixed   as   Rs.4,500/-,   resulting   an    additional\n\n      compensation of Rs.1,500/- (4,500 - 3,000).20.   Towards bystander expenses, the Tribunal awardedMACA No.846 of 2013-11-a sum of Rs.5,500/-. Towards extra nourishment, the Tribunal\n\n      awarded a further sum of Rs.5,000/-. The accident is of the\n\n      year   2007     and   the   appellant   had   undergone   inpatient\n\n      treatment for 53 days. Considering the nature of injuries\n\n      sustained and the treatment the appellant had undergone, as\n\n      borne out from medical records, the compensation under the\n\n      head bystander expenses is re-fixed as Rs.10,600/- (200 x53), resulting an additional compensation of Rs.5,100/-\n\n      (10,600 - 5,500). The compensation under the head extra\n\n      nourishment is re-fixed as Rs.7,950/- (150 x 53), resulting an\n\n      additional compensation of Rs.2,950/- (7,950 - 5,000).21.   The Tribunal awarded no amount towards damage\n\n      to clothing.    Considering the fact that the accident is of the\n\n      year 2007, this Court deem it appropriate to grant a sum of\n\n      Rs.1,000/- as compensation under this head.22.   Towards medical expenses, the Tribunal awarded a\n\n      sum of Rs.2,19,504/-, covered by Exts.A11 and A19 series of\n\n      medical bills. In the absence of any further materials, the\n\n      compensation awarded by the Tribunal under this head\n\n      represents just and reasonable compensation, which requiresMACA No.846 of 2013-12-no enhancement in this appeal.23.    As compensation towards pain and suffering, the\n\n      Tribunal awarded a sum of Rs.50,000/-. Considering the\n\n      nature of injuries sustained and the treatment the appellant\n\n      had undergone, as borne out from medical records, the\n\n      compensation awarded by the Tribunal under this head cannot\n\n      be said to be on the lower side. Therefore, the appellant is not\n\n      entitled for any enhancement under this head.24.InSarla Verma v. Delhi Transport Corporation[(2009) 6 SCC 121], the Apex Court, after referring to its\n\n      earlier     decisions   inKerala   State   Road   Transport\n\n      Corporation v. Susamma Thomas[(1994) 2 SCC 176],\n\n      U.P. State Road Transport Corporation v. Trilok Chandra[(1996) 4 SCC 362] and New India Assurance Co. Ltd. v.\n\n      Charlie[(2005) 10 SCC 720] held that the multiplier to be\n\n      used should be as mentioned in column (4) of the Table in\n\n      paragraph 40 ofthe said decision[prepared by applying\n\n      Susamma Thomas, Trilok Chandra and Charlie], which\n\n      starts with an operative multiplier of 18 [for the age groups of\n\n      15 to 20 and 21 to 25 years], reduced by one unit for everyMACA No.846 of 2013-13-five years, i.e., multiplier of 17 for 26 to 30 years, multiplier\n\n      of 16 for 31 to 35 years, multiplier of 15 for 36 to 40 years,\n\n      multiplier of 14 for 41 to 45 years, and multiplier of 13 for 46\n\n      to 50 years, then reduced by two units for every five years,\n\n      i.e., multiplier of 11 for 51 to 55 years, multiplier of 9 for 56\n\n      to 60 years, multiplier of 7 for 61 to 65 years and multiplier of\n\n      5 for 66 to 70 years.25.InNational Insurance Company Ltd. v. Pranay\n\n      Sethi[(2017) 16 SCC 680] a Constitution Bench of the\n\n      Apex Court held that, as far as the multiplier is concerned, the\n\n      Claims Tribunal and the Courts shall be guided by Step 2 that\n\n      finds place in paragraph 19 of Sarla Verma, read with\n\n      paragraph 42 ofthe said judgment.26.   In the instant case, as on the date of accident, the\n\n      appellant was aged 37 years.In the light of the decisions of\n\n      the Apex Court inSarla Verma's case and Pranay Sethi's\n\n      case referred to supra, the multiplier of 16 applied by the\n\n      Tribunal is not correct and the proper multiplier to be applied\n\n      is 15.27.   Towards compensation for permanent disability, theMACA No.846 of 2013-14-Tribunal awarded a sum of Rs.2,33,472/- (3,200 x 12 x 16 x\n\n      38/100). Since the monthly income of the appellant is re-fixed\n\n      notionally      as    Rs.6,250/-,     applying         the   multiplier    of   15\n\n      applicable to the age group of the appellant and the\n\n      percentage of permanent disability as 38%, the compensation\n\n      under    the         head     permanent        disability     is   re-fixed     as\n\n      Rs.4,27,500/- (6,250 x 12 x 15 x 38/100), resulting an\n\n      additional      compensation         of     Rs.1,94,028/-          (4,27,500     -\n\n      2,33,472).28.    Towards loss of amenities the Tribunal awarded a\n\n      sum of Rs.40,000/-. In Ext.C1 disability certificate the\n\n      permanent disability of the appellant, on account of the\n\n      injuries sustained in the accident, is assessed as 38%.\n\n      Considering      the        nature   of     injuries    sustained    and      38%\n\n      permanent disability on account of those injuries, as assessed\n\n      in Ext.C1 disability certificate, the compensation awarded by\n\n      the Tribunal under this head cannot be said to be on the lower\n\n      side, which requires no enhancement in this appeal.29. In the result, the appellant/claimant will be entitled\n\n      for payment of an additional compensation of Rs.2,41,178/-MACA No.846 of 2013-15-(Rupees two lakh forty one thousand one hundred and\n\n      seventy eight only) [36,600 + 1,500 + 5,100 + 2,950 +\n\n      1,000 + 1,94,028] in this appeal, which will carry interest at\n\n      the rate of 8% per annum from the date of petition till\n\n      realisation. The 3rd respondent insurer shall satisfy the\n\n      additional compensation granted in this appeal, together with\n\n      interest,   within a period of two months from the date of\n\n      receipt of a certified copy of this judgment, after deducting\n\n      the liability, if any, of the appellant/claimant towards Balance\n\n      Court Fee and Legal Benefit Fund. The disbursement of\n\n      additional compensation to the appellant/claimant shall be\n\n      made taking note of the law on the point and in terms of the\n\n      directives issued by this Court in Circular No.3 of 2019 dated\n\n      06.09.2019 and clarified further in Official Memorandum\n\n      No.D1-62475/2016 dated 07.11.2019. The appellant shall\n\n      provide his Bank account details (attested copy of the relevant\n\n      page of the Bank Passbook having details of the Bank Account\n\n      Number and IFSC     Code of the branch) before the Tribunal,\n\n      with copy to the learned Standing Counsel for the insurer,\n\n      within one month from the date of receipt of a certified copyMACA No.846 of 2013-16-of this judgment.This appeal is disposed of as above. No order as to costs.Sd/-ANIL K. NARENDRAN\n                                                   JUDGE\n      bpr