Abraham Varghese v. The Reliance General Insurance Co Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** ## **MACA.No.4201 OF 2019** **AGAINST THE AWARD IN OP(MV)NO.553/2017 DATED 29-04-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/PETITIONER :** **ABRAHAM VARGHESE, AGED 60 YEARS S/O.VARGHESE, THEKKUMKUDIYIL HOUSE, MANEED VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.PAUL K.VARGHESE** ## **RESPONDENT/3RD RESPONDENT :** **THE RELIANCE GENERAL INSURANCE CO LTD., ERNAKULAM DISTRICT, KOCHI- 20, KERALA, REPRESENTED BY ITS MANAGER.** **R BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.4201 of 2019 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.553 of 2017 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, 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 22.04.2017, while he was riding a scooter bearing registration No.KL-17/L-6389. At the place of accident, the scooter was hit by a goods auto bearing registration No.KL-17/L-770 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 auto by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation Rs.3,87,000/- under various heads, which was limited to Rs.1,50,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. MACA No.4201 of 2019 3 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the goods auto involved in the accident; however denying the liability. The insurer contended that, at the time of accident, the goods auto was driven by the 2[nd] respondent owner. Since he had no valid driving licence, the 1[st] respondent was shown as the driver of that vehicle. As there was violation of the conditions of policy, the insurer is not liable to indemnify the insured. 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 A9 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the goods auto was marked as Ext.B1. 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 goods MACA No.4201 of 2019 4 auto by the 1[st] respondent driver, who was charge sheeted by the Police in Ext.A6 charge sheet. 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.98,559.10/-, which was rounded off to Rs.98,600/-, together with interest at the rate of 7% per annum from the date of petition 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. 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** MACA No.4201 of 2019 5 **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 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. MACA No.4201 of 2019 6 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; ||Head<br>of<br>claim<br>compensation for|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>(in Rs.)|Notes| |---|---|---|---|---| |1|Loss of earnings|90,000|14,000|reasonable| |2|Transport expenses|5,000|3,000|reasonable| |3|Treatment expenses|50,000|39,659.10|actual| |4|Future<br>treatment<br>expenses|25,000|0|Not entitled| |5|Attendant charges|5,000|900|reasonable| |6|Extra nourishment|10,000|5,000|reasonable| |7|Damage to cloth and<br>articles|2,000|1,000|reasonable| |8|Pain and sufferings|50,000|20,000|reasonable| |9|Loss of amenities|50,000|15,000|reasonable| |10|Continuing<br>permanent disability<br>and disfiguration|50,000|0|Not entitled| |11|Mental shock and<br>agony|50,000|0|Not entitled| ||Total Claim is limited<br>to|3,87,000<br>1,50,000|98,559.10|Just<br>compensation| |||||| MACA No.4201 of 2019 7 12. The accident occurred on 22.04.2017. At the time of accident, the appellant was aged 58 years. The appellant claimed a monthly income of Rs.15,000/- as Electrician. 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.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 MACA No.4201 of 2019 8 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 documents to prove his monthly income. Therefore, there was no reason for the Tribunal and MACA No.4201 of 2019 9 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 2017, 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.11,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A7 is a copy of the accident register cum wound certificate issued from MOSC Medical College Hospital, Kolenchery. Ext.A8 is the discharge summary. As per the medical records, in the accident, the appellant sustained lacerated wound on left thump with interphalangeal joint sub luxation, right zygoma maxillary complex closed fracture and open fracture left MACA No.4201 of 2019 10 thump interphalangeal joint. He had undergone inpatient treatment for a period of 3 days. Ext.A9 medical bills are for a sum of Rs.39,659.10/-. 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 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 3 months. Since the monthly income of the appellant is re-fixed notionally as Rs.11,000/-, the compensation under the head loss of earning is re-fixed as Rs.33,000/- (11,000 x 3), resulting an additional compensation of **Rs.19,000/-** (33,000 – 14,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 3 days. The accident is of the year 2017.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 MACA No.4201 of 2019 11 from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards attendant charges, the Tribunal awarded a sum of Rs.900/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.5,000/-. The accident is of the year 2017 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 cannot be said to be on the lower side, which requires no enhancement in this appeal. 20. Towards damage to cloth and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2017, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 21. Towards treatment expenses, the Tribunal MACA No.4201 of 2019 12 awarded a sum of Rs.39,659.10, covered by Ext.A9 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.20,000/-. 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.15,000/-. No reliable materials were placed before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability. In the absence of any such materials, 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. MACA No.4201 of 2019 13 24. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.19,500/-** (Rupees nineteen thousand and five hundred only) [19,000 + 500] 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 insurer shall also deduct the liability of the appellant/claimant towards additional court fee in this appeal, in view of the amendment made to sub-rule (3) of Rule 397 of the Kerala Motor Vehicles Rules, 1989, with effect from 16.01.2015, and the same shall be deposited before this Court. Registry shall calculate the additional court fee payable in this appeal and a statement to that effect shall also be enclosed along with the certified copy of this judgment. The disbursement of additional MACA No.4201 of 2019 14 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 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 certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV/9/1 MACA No.4201 of 2019 15 ## Statement of Additional court fee payable Total amount claimed in MACA :Rs 1,50,000 Amount awarded by MACT Muvattupuzha :Rs 98,600 Additional compensation awarded by this Court :Rs 19,500 The total Court fee to be paid in view of the amendment to Sub Rule (3) of Rule 397 of Kerala Motor Vehicle Rules 1989 :Rs 1000 CF paid :Rs 100 Additional amount to be paid :Rs 900 The above statement showing additional court fee payable in the appeal is appended along with the certified copy of the judgment as per direction in the judgment dated 06.01.2020 in MACA 4201/2019. Sd/- **ASSISTANT REGISTRAR**