Abdu v Anasu Rahman and Abdu (S/O Moytheen) and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** ## **MACA.No.2214 OF 2018(F)** **AGAINST THE AWARD IN OPMV 559/2013 DATED 28-03-2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT:** **ABDU,** **AGED 46 YEARS, S/O.MOIDEEN KUTTY, MUNDARAYIL HOUSE, ELAMKULAM POST, PERINTHALMANNA TALUK, ELAMKULAM AMSOM, MALAPPURAM DISTRICT - 679 340.** ## **BY ADV. SRI.K.VIDYASAGAR** ## **RESPONDENTS:** - **1 ANASU RAHMAN, S/O.ABDU, POOZHITHODI HOUSE, PATHIRICODE POST, PERINTHALMANNA TALUK, PATHIRICODE AMSOM, MALAPPURAM DISTRICT - 679 326.** - **2 ABDU, S/O.MOYTHEEN, VALLIL HOUSE, ANAMANGAD POST, PERINTHALMANNA TALUK, ANAMANGAD AMSOM, MALAPPURAM DISTRICT - 679 357.** - **3 NATIONAL INSURANCE COMPANY LIMITED, SECOND FLOOR, PALLIKKAL SHOPPING COMPLEXS, BXVI/277 AND 278, KOZHIKODE ROAD, MANJERI, MALAPPURAM DISTRICT, KERALA - 676 121.** **R3 BY ADV. ABHIJETT LESSLI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2214 of 2018 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.559 of 2013 on the file of the Motor Accidents Claims Tribunal, Manjeri, 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 07.03.2013, while he was riding a motorcycle bearing registration No.KL-10/C-613. At the place of accident, the motorcycle was hit by an autorickshaw bearing registration No.KL-53/E-146, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,00,000/- under various heads, which was limited to Rs.70,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent driver and the 2[nd] respondent owner remained absent and they were set ex-parte. M.A.C.A.No.2214 of 2018 3 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the autorickshaw involved in the accident; however, denying the negligence alleged against its driver. The insurer raised a contention that the 1[st] respondent driver was not holding badge to drive the autorickshaw. The insurer also disputed the age, occupation, monthly income, etc. stated in the claim petition and contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with connected matter. Exts.A1 to A6 were marked on the side of the claimants. Both sides have not chosen to adduce any oral 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 autorickshaw by its driver. Relying on the judgment of this Court in **National Insurance Company Limited v. Jisha K.P. and others [2015 (1) KHC 29]** , the Tribunal held that, a mere absence of badge could not lead to a situation whereby the insurer can avoid the liability towards third party. M.A.C.A.No.2214 of 2018 4 Therefore, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.37,000/-, together with interest at the rate of 9% per annum from the date of petition, i.e., 22.06.2013, 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 appeal. The delay of 390 days in filing this appeal was condoned by order dated 29.01.2019, on payment of a cost of Rs.1,000/-. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] 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 M.A.C.A.No.2214 of 2018 5 168 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 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 M.A.C.A.No.2214 of 2018 6 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; ||Head of claim|Amount<br>claimed|Amount<br>awarded|Remarks| |---|---|---|---|---| |1|Loss of earning|25,000/-|14,000/-|| |2|Transport to hospital|1,000/-|1,500/-|500 x 3| |3|Damage to clothing and<br>articles|1,000/-|500/-|| |4|Extra nourishment|1,000/-|750/-|250 x 3| |5|Medical expenses||9,147.56/-|Ext.A6 series| |6|Bystander expenses|22,000/-|1,050/-|350 x 3| |7|Compensation for pain<br>suffering|20,000/-|10,000/-|| |8|Compensation for loss<br>of amenities|Nil|Nil|| |9|Compensation for<br>permanent partial<br>disability|30,000/-|Nil|| ||Total<br>(claim limited to)|1,00,000/-<br>70,000/-|36,947.56/-|Rounded to<br>**Rs.37,000/-**| 12. The accident occurred on 07.03.2013. At the time of accident, the appellant was aged 42 years. The appellant claimed a monthly income of Rs.12,000/- as businessman. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not M.A.C.A.No.2214 of 2018 7 chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.7,000/-, 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 M.A.C.A.No.2214 of 2018 8 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. 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., M.A.C.A.No.2214 of 2018 9 during the year 2013, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.9,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate; Ext.A4 is the discharge card issued from Moulana Hospital, Perinthalmanna; and Ext.A5 is the CT Scan report. As per medical records, in the accident, the appellant sustained fracture of P2 head of metatarsal right foot; abrasion on forehead and left side of face; black eye was detected; lacerated wound 6x5 cm on right forearm; lacerated wound 3x2 cm over hand; contusion over little finger; and also brain oedema. The appellant had undergone inpatient treatment for a period of 3 days. He visited the hospital twice for review after discharge and the last visit for review was on 01.04.2013. Ext.A6 series of medical bills are for a sum of Rs.9,147.56/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.14,000/-, at the rate of Rs.7,000/- for a period of 2 M.A.C.A.No.2214 of 2018 10 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 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.9,000/-, the compensation under the head loss of earning is re-fixed as Rs.36,000/- (9,000 x 4), resulting an additional compensation of **Rs.22,000/-** (36,000 - 14,000). 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 3 days. The accident is of the year 2013. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,500/-** (3,000 - 1,500). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.1,050/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.750/-. The accident is of the year M.A.C.A.No.2214 of 2018 11 2013 and the appellant had undergone inpatient treatment for 3 days. 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 these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2013, the compensation under this head is re-fixed as Rs.1,250/-, resulting an additional compensation of **Rs.750/-** (1,250 -500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.9,147.56/-, 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 this appeal. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant M.A.C.A.No.2214 of 2018 12 had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 - 10,000). 23. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.29,250/-** (Rupees Twenty Nine Thousand Two Hundred and Fifty only) [22,000 + 1,500 + 750 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] 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 M.A.C.A.No.2214 of 2018 13 provide his Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** yd