Abida v. New India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** ## **MACA.No.2096 OF 2010** **AGAINST THE AWARD IN OPMV 1336/2004 DATED 25-10-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT:** **ABIDA, D/O.KUNHIMOHAMMED, CHAKKUMTHODI HOUSE, RAMAPURAM P.O.,, PERINTHALMANNA, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT:** **THE NEW INDIA INSURANCE CO. LTD. TIRUR, MALAPPURAM DISTRICT, PIN-676101.** **BY ADV. SRI.K.C.SANTHOSHKUMAR BY ADV. SRI.A.A.ZIYAD RAHMAN, SC, NEW INDIA ASSURANCE COMPANY LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2096 of 2010 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1336 of 2004 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 her in a motor accident, which occurred on 16.05.2004, while she was walking through the public road. At the place of accident, she was knocked down by a Maruti car bearing registration No.CA-02/J-6295 driven by the 1[st] respondent and owned by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of Maruti car by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent driver remained absent and he was set ex-parte. The 2[nd] respondent owner filed written statement admitting the accident; however, denying the negligence alleged against the 1[st] respondent M.A.C.A.No.2096 of 2010 3 driver. 3. The respondent insurer filed written statement admitting the insurance coverage of the car involved in the accident; however, denying the negligence alleged against its driver. 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, Exts.A1 to A5 series 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 driving of the 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.95,193/-, which was rounded off to Rs.95,200/-, together with interest at the rate of 7% per annum from the date of petition till date of deposit, with proportionate cost of Rs.500/-, and the insurer was directed to M.A.C.A.No.2096 of 2010 4 satisfy the award. 6. Dissatisfied with the quantum of compensation awarded 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 M.A.C.A.No.2096 of 2010 5 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 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; ||The compensation claimed under various heads|Amount allowed| |---|---|---| |1|Transportation to the hospital|500/-| |2|Damage to the clothings|250/-| M.A.C.A.No.2096 of 2010 6 |3|Extra nourishment & bystander's expenses|1,600/-| |---|---|---| |4|For reviews (45 times)|4,500/-| |5|Pain and suffering|15,000/-| |6|Loss of income for 12 months @ Rs.2,000/- per<br>month|24,000/-| |7|Medical bills (Eligible)|45,343/-| |8|For disfiguration|Rs.4,000/-| ||Total<br>Rounded to|95,193/-<br>95,200/-| 12. The accident occurred on 16.05.2004. At the time of accident, the appellant was aged 26 years. The appellant claimed a monthly income of Rs.4,500/- as a coolie (manual labourer). The appellant has not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,000/-, 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 M.A.C.A.No.2096 of 2010 7 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 cannot be expected to produce M.A.C.A.No.2096 of 2010 8 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 2004, 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.4,500/- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate and Ext.A3 is the discharge summary. As per medical records, the appellant had sustained compound fracture on left elbow; and fracture on tibia (left). The appellant had undergone inpatient treatment for a period of 16 M.A.C.A.No.2096 of 2010 9 days. The X-Ray report showed united fracture of tibia left with implant in situ. Implant removal was done on 21.07.2007. Ext.A5 series of medical bills are for a sum of Rs.45,343/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.24,000/-, at the rate of Rs.2,000/- for a period of 12 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 12 months fixed by the Tribunal for granting loss of earning cannot be said to be on the lower side. Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.54,000/- (4,500 x 12), resulting an additional compensation of **Rs.30,000/-** (54,000 - 24,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 16 days. The accident is of the year 2004. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, M.A.C.A.No.2096 of 2010 10 the compensation under this head is re-fixed as Rs.2,500/-, resulting an additional compensation of **Rs.2,000/-** (2,500 - 500). 19. Towards bystander expenses and extra nourishment, the Tribunal awarded a sum of Rs.1,600/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 16 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.2,400/- (150 x 16) and the compensation under the head extra nourishment is re-fixed as Rs.1,600/- (100 x 16), resulting an additional compensation of **Rs.2,400/-** [(2,400 + 1,600) - 1,600] under the above heads. 20. Towards damage to clothings, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 21. Towards medical expenses, the Tribunal awarded a M.A.C.A.No.2096 of 2010 11 sum of Rs.45,343/-, covered by Ext.A5 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.15,000/-. 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 reviews, the Tribunal awarded a sum of Rs.4,500/-. The appellant had undergone two surgeries and attended various reviews. Considering the said facts, the compensation under this head is re-fixed as Rs.7,000/-, resulting an additional compensation of **Rs.2,500/-** (7,000 - 4,500). 24. Towards disfiguration, the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained and M.A.C.A.No.2096 of 2010 12 the resultant disfiguration, the compensation under this head is re-fixed as Rs.5,000/-, resulting an additional compensation of **Rs.1,000/-** (5,000 - 4,000). 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.38,400/-** (Rupees Thirty Eight Thousand Four Hundred only) [30,000 + 2,000 + 2,400 + 500 + 2,500 + 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 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/claimant shall furnish her Bank account details (attested copy of the M.A.C.A.No.2096 of 2010 13 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