Abdul Rasheed @ Raseed v. The Manager (Insurer) Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** ## **MACA.No.4306 OF 2019** **AGAINST THE AWARD IN OP(MV) 1081/2014 DATED 28-12-2018 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/PETITIONER:** **ABDUL RASHEED @ RASEED AGED 51 YEARS S/O.NOOH, RAFEEK MANZIL, THAMALLACKAL MURI, KUMARAPURAM VILLAGE, KARTHIKAPPALLY, PIN-690517.** **BY ADV. SMT.RESMY M.S** ## **RESPONDENT/2ND RESPONDENT:** **THE MANAGER(INSURER) ORIENTAL INSURANCE CO. LTD., CVM COMPLEX, OPPOSITE SEEMATI THEATRE, YMCA ROAD, ALLEPPEY-688001.** **R1 BY ADV. SMT.REKHA NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.4306 OF 2019** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.1081 of 2014 on the file of the Additional Motor Accidents Claims Tribunal, Mavelikara, 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 15.01.2012, while he was riding a motorcycle bearing registration No.KL-29/D-3055. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-29/D3503 owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,10,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cum-rider remained absent and he was set ex-parte. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the offending motorcycle; **MACA.No.4306 OF 2019** 3 however, denying negligence alleged against the 1[st] respondent owner-cum-rider. The insurer contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant/claimant. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. 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 riding of the offending motorcycle by the 1[st] respondent rider. 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.17,800/-, together with interest at the rate of 7.5% per annum from the date of petition till date of realisation, with proportionate cost. The 2[nd] respondent insurer was directed to satisfy the award within 90 days from the date of award. 6. Dissatisfied with the quantum of compensation awarded **MACA.No.4306 OF 2019** 4 by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 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.4306 OF 2019** 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: |No.|Head of claim|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>(in Rs.)|Details in a nut<br>shell| |---|---|---|---|---| |1|Loss of earnings|20,000|5,000|Earnings for 1<br>month| |2|Partial loss of earnings|||| |3|Transport to hospital|2,000|1,000|| |4|Extra nourishment|3,000|1,000|Reasonable<br>estimate| |5|Damage to clothing|2,000|500|Reasonable<br>estimate| |6|Medical expenses|10,000|500|Without bill| **MACA.No.4306 OF 2019** 6 |7|Bystander's<br>expenses<br>future treatment|2,000|1,800|9 days IP @ 200| |---|---|---|---|---| |8|Pain<br>and<br>suffering<br>compensation<br>for<br>disfiguration|25,000|5,000|Considering the<br>injuries| |9|Disabilityincome|31,000||| |10|Compensation for loss of<br>earningpower|||| |11|Loss<br>of<br>amenities<br>compensation<br>for<br>deformity|15,000|3,000|Considering the<br>injuries| ||Total|1,10,000/-|17,800/-|| 12. The accident occurred on 15.01.2012. At the time of accident, the appellant was aged 46 years. The appellant claimed a monthly income of Rs.15,000/- as a Priest in a mosque. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.5,000/-, 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 **MACA.No.4306 OF 2019** 7 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 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 **MACA.No.4306 OF 2019** 8 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 2012, 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.8,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A9 is the accident register cum wound certificate issued from the Government Hospital, Haripad; Ext.A3 is the OP ticket issued from the Medical College Hospital, Alappuzha; Ext.A4 is the discharge summary issued from Taluk Hospital, Haripad; and Ext.A5 and A6 are prescriptions. As per medical records, the appellant sustained lacerated wound scalp **MACA.No.4306 OF 2019** 9 occipital region 4 x 3 x 1 cm, contusion lower abdomen, injury both knee and injury right palm. He had undergone inpatient treatment for a period of 9 days. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.5,000/-, at the rate of Rs.5,000/- for a period of one month. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of one month fixed by the Tribunal for granting loss of earning is re-fixed as 2 months. Since the monthly income of the appellant is re-fixed notionally as Rs.8,500/-, the compensation under the head loss of earning is re-fixed as Rs.17,000/- (8,500 x 2), resulting an additional compensation of **Rs.12,000/-** (17,000 – 5,000) 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 9 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. 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.2,000/-, resulting an additional compensation of **Rs.1,000/-** **MACA.No.4306 OF 2019** 10 (2,000 – 1,000). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.1,800/- (200 x 9). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2012 and the appellant had undergone inpatient treatment for 9 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.2,250/- (250 x 9), resulting an additional compensation of **Rs.450/-** (2,250 – 1,800). The compensation under the head extra nourishment is re-fixed as Rs.1,350/- (150 x 9), resulting an additional compensation of **Rs.350/-** (1,350 – 1,000). 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 2012, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.500/-. In the absence of any medical bills, the compensation **MACA.No.4306 OF 2019** 11 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.5,000/-. 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. 23. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. No materials are placed on record to show that the appellant suffers permanent disability on account of the injuries sustained in the accident. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head cannot also be said to be on the lower side, which requires no enhancement in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.14,800/-** (Rupees fourteen thousand eight hundred only) [12,000 + 1,000 + 450 + 350 + **MACA.No.4306 OF 2019** 12 1,000] in this appeal, which will carry interest at the rate of **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** jv ## **JUDGE**