Ajeesh Kumar K. v United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941** ## **MACA.No.3670 OF 2019** **AGAINST THE AWARD DATED 08.02.2019 IN OPMV 815/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** **AJEESH KUMAR K. AGED 24 YEARS S/O. KUMARAN, AISWAYA NIVAS, NAGUVARCHALLA, KOYYAMARAKKAD, KANJIKODE P.O., PUDUSSERY, PALAKKAD DISTRICT** **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENT/2ND RESPONDENT:** **UNITED INDIA INSURANCE CO. LTD. MALABAR FORT BUILDING,OLD KANDATH COMPLEX, G.B. ROAD, PALAKKAD-678 001, REPRESENTED BY ITS MANAGER** **R1 BY ADV. SRI.JOHN JOSEPH VETTIKAD R1 BY ADV. SRI.C.JOSEPH JOHNY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3670 OF 2019** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.815 of 2016 on the file of the Motor Accidents Claims Tribunal, Palakkad, which is 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 19.8.2015, while he was riding a motorcycle. At the place of accident, the said motorcycle was hit by a car bearing registration No.KL-8/D-6028 owned and driven by the 1[st] respondent before the Tribunal and insured with the 2[nd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of motorcar by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.20,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent filed written statement admitting the accident; however, denying the negligence alleged against him. The 1[st] respondent contended that the compensation claimed is highly excessive. **MACA.No.3670 OF 2019** 3 3. The 2[nd] respondent/insurer filed written statement admitting the insurance coverage of the offending motorcar; however, denying the negligence alleged against the 1[st] respondent owner-cum-driver. It was contended that the amount of compensation claimed is exorbitant. 4. Before the Tribunal, Exts.A1 to A24 were marked on the side of the appellant/claimant. Ext.B1 certificate of insurance was marked on the side of the respondent. 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 offending motorcar by the 1[st] respondent owner-cum-driver. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.4,23,524/-, and the 2[nd] respondent insurer was directed to satisfy the award, with interest at the rate of 9% per annum from the date of petition till date of deposit, together with proportionate cost. **MACA.No.3670 OF 2019** 4 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 2[nd] 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 **MACA.No.3670 OF 2019** 5 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 different heads reads thus: |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>(in Rs.|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning|1,50,000|48,000|8000x6 months| |2|Transportation to<br>Hospital|50,000|10,000|Reasonable<br>amount awarded| **MACA.No.3670 OF 2019** 6 |3|Damage to clothing and<br>articles|5,000|1,000|Reasonable<br>amount awarded| |---|---|---|---|---| |4|Extra nourishment|50,000|5,000|Reasonable<br>amount awarded| |5|Expenses of a Bystander|48,000|9,000|Rs.300x30 days<br>(Ext.A13, A17 and<br>A18)| |6|Treatment Expenses|6,00,000|1,57,284|Exts.A15 series<br>and A24 series| |7|Compensation for pain<br>and suffering|3,00,000|40,000|Reasonable<br>amount awarded| |8|Compensation for loss<br>of earning power|1,20,000|1,38,240|8000x12x18x8/100| |9|Compensation for loss<br>of amenities and<br>enjoyment in life|2,00,000|15,000|Reasonable<br>amount awarded| ||**Total**||**4,23,524**|| 12. The accident occurred on 19.8.2015. At the time of accident, the appellant was aged 21 years. He claimed a monthly income of Rs.10,000/- as an electrician. No documents were produced before the Tribunal to prove his monthly income. Ext.A20 National Trade Certificate and Ext.21 Provisional Trade Certificate were produced. The appellant has not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.8,000/-, for the purpose of assessing compensation under various heads. 13. In **Ramachandrappa v. Manager, Royal Sundaram** **MACA.No.3670 OF 2019** 7 ## **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 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 **MACA.No.3670 OF 2019** 8 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., during the year 2015, 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 refix the monthly income of the appellant notionally as Rs.10,000/-, for the purpose of assessing compensation under different heads. **MACA.No.3670 OF 2019** 9 16. The document marked as Ext.A11 is the wound certificate and Exts.A13, A17 and A18 are the discharge summaries. The appellant had undergone inpatient treatment for 30 days. Ext.A15 medical bills are for a sum of Rs.1,57,248/-. As per Ext.A11 wound certificate, the appellant sustained traumatic severe head injury, right frontal brain contusion, left frontal intracerebral haematoma, fracture left tallus, fracture occipital bone, lacerated wound 4 x 1 x 1 cms over right eyebrow, multiple lacerations over the face and paid and swelling left foot. In Ext.A16 disability certificate, issued by an Orthopedic surgeon of Medical College Hospital, Thrissur, 15% permanent disability has been assessed, on account of the injuries sustained in the accident. The doctor who issued Ext.A16 disability certificate was not examined. The certificate shows that malunion of fracture was there. Range of flexion decreased and there was head ache due to the head injury. Surgical scar and severe deformity was there over the scalp and forehead. The Tribunal took the percentage of disability as 8%. Having considered the nature of injuries and the disability that has been noticed in Ext.A16, this **MACA.No.3670 OF 2019** 10 Court deem it appropriate to take the percentage of permanent disability as 10%, for the purpose of assessing compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.48,000/-, at the rate of Rs.8,000/- per month for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, the compensation under the head loss of earning is re-fixed as Rs.60,000/- (10,000x6), resulting an additional compensation of **Rs.12,000/-** (60,000-48,000). 18. The Tribunal awarded a sum of Rs.10,000/- towards transportation to hospital and a sum of Rs.5,000/- towards extra nourishment. Towards bystander expense, the Tribunal awarded a further sum of Rs.9,000/- (300x3). Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation **MACA.No.3670 OF 2019** 11 awarded by the Tribunal under these heads cannot be said to be on the lower side, 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 Treatment expenses, the Tribunal awarded a sum of Rs.1,57,284/-, covered by Exts.A15 and A24 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. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.40,000/-. 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 **MACA.No.3670 OF 2019** 12 enhancement under this head. 22. Towards loss of future earning power, the Tribunal awarded a sum of Rs.1,38,240/- (8000x12x18x8/100). Since the monthly income and percentage of disability of the appellant is notionally refixed as Rs.10,000/- and 10% respectively, the compensation under this head is refixed as Rs.2,16,000/(10,000x12x18x10/100), resulting an additional compensation of **Rs.77,760/-** (2,16,000-1,38,240). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and 10% permanent disability of the appellant accepted as above, the compensation awarded by the Tribunal under this head cannot also be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.90,260/-** (Rupees inety thousand two hundred and sixty only) [12,000 + 500 + 77,760] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent **MACA.No.3670 OF 2019** 13 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** **JUDGE** jv