AABOOBACHER SIDEEQ @ SIHEEQUE vs Reliance General Insurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** ## **MACA.No.3867 OF 2019** **AGAINST THE AWARD IN OPMV 202/2016 DATED 28-02-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/S:** **AABOOBACHER SIDEEQ @ SIHEEQUE AGED 35 YEARS S/O. MUHAMME KUTTY, CHONARI HOUSE, KUNNATHUPARAMP, MOONNIYUR SOUTH P O, MALAPPURAM DISTRICT, PIN-676311.** **BY ADV. SRI.N.V.P.RAFEEQUE** **RESPONDENT/S:** **RELIANCE GENERAL INSURANCE COMPANY LTD. 2ND FLOOR, CITADEL ARCADE, R.C. ROAD, OPPOSITE TAGOR HALL, KOZHIKODE DISTRICT, PIN673032.** **R1 BY ADV. SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 3867 of 2019 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.202 of 2016 on the file of the Motor Accidents Claims Tribunal, Tirur, 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 30.11.2015, while he was travelling in a car bearing registration No.KL-65/D-8118. At the place of accident, the car was hit by a lorry bearing registration No.KA-05/AB-0948, owned by the 1[st] respondent and driven by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.12,45,000/-, under various heads, which was limited to Rs.5,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the owner and driver of the lorry remained absent and they were set ex parte. The -3- MACA. No. 3867 of 2019 respondent insurer filed written statement admitting insurance coverage of the lorry involved in the accident; however, denying the negligence alleged against its driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A6 series were marked on the side of the appellant/claimant and he was examined as PW1. The document marked as Ext.C1 is the disability certificate issued by the Standing Disability Assessment Board at District Hospital, Tirur. 4. 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 vehicle 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.1,20,420/-, which was rounded off to Rs.1,20,500/-, together with interest at the -4- MACA. No. 3867 of 2019 rate of 7% per annum from the date of petition till date of realisation, with proportionate cost, and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the respondent insurer. 7. 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. 8. 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 -5- MACA. No. 3867 of 2019 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. 9. In **National Insurance Company Ltd. v. Pranay 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. -6- MACA. No. 3867 of 2019 ## 10. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>allowed|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|1,00,000/-|25,000/-|| |2|Partial loss of earnings<br>from|50,000/-|Nil|| |3|Transport to hospital|10,000/-|3,000/-|| |4|Extra nourishment|50,000/-|1,000/-|| |5|Damage to clothing and<br>articles|10,000/-|1,000/-|| |6|Others:1)Medical expenses<br>2) bystander's expenses|50,000/-<br>25,000/-|54,920/-<br>500/-|Ext.A6 series<br>Bystander<br>exp.| |7|Compensation for pain and<br>suffering|2,00,000/-|25,000/-|| |8|Compensation for<br>continuing or permanent<br>disability|3,00,000/-|Nil|| |9|Compensation for the loss<br>of earning power|2,00,000/-|Nil|| |10|Compensation for loss of<br>amenities of life|2,50,000/-|10,000/-|| ||**Total**|12,45,000/<br>-<br>claim<br>restricted<br>to<br>5,00,000/-|**1,20,420/-**<br>**rounded to**<br>**1,20,500/-**|| 11. The accident occurred on 30.11.2015. At the time of accident, the appellant was aged 31 years. The appellant claimed a monthly income of Rs.10,000/- as a coolie. The -7- MACA. No. 3867 of 2019 appellant was examined as PW1. Though the Tribunal did not fix a monthly income, a lump-sum amount of Rs.25,000/- was awarded towards loss of earning. 12. 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 -8- MACA. No. 3867 of 2019 Tribunal may not accept the claim and may 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. 13. 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. -9- MACA. No. 3867 of 2019 14. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2015, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.10,000/- claimed in the claim petition, cannot be said to be on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the wound certificate and Ext.A4 is the discharge summary. As per medical records, in the accident, the appellant sustained moderate TBI, bilateral rib fractures and mild pneumothorax left side. He had undergone inpatient treatment for a period of two days. Ext.A6 series of medical bills are for a sum of Rs.54,920/-. Ext.C1 is the disability certificate issued by the Standing Disability Assessment Board, District Hospital, Tirur, in which no permanent disability is assessed. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries -10- MACA. No. 3867 of 2019 sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to fix 4 months period for granting loss of earning. Since the monthly income of the appellant is fixed notionally as Rs.10,000/-, the compensation under the head loss of earning is re-fixed as Rs.40,000/- (10,000 x 4), resulting an additional compensation of **Rs.15,000/-** (40,000 – 25,000). 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 2 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,000/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards bystander expenses the Tribunal awarded a sum of Rs. 500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the -11- MACA. No. 3867 of 2019 year 2015 and the appellant had undergone inpatient treatment for 2 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs. 700/- (350 x 2), resulting an additional compensation of **Rs.200/-** (700 – 500). The compensation awarded by the Tribunal under the head extra nourishment represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2015, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.54,920/-, covered by Ext.A6 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 -12- MACA. No. 3867 of 2019 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. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. In Ext.C1 disability certificate issued by the Standing Disability Assessment Board, District Hospital, Tirur, no permanent disability is assessed. Therefore, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 23. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.15,700/-** (Rupees fifteen thousand seven hundred only) [15,000 + 200 + 500] in this appeal, which will carry interest at the rate of -13- MACA. No. 3867 of 2019 **8%** per annum from the date of petition till realisation. The 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 the amount to the appellant/claimant shall be 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. This appeal is disposed of as above. No order as to costs. ## **Sd/-** **ANIL K.NARENDRAN JUDGE** das