Akash Babu v. Lawrence, Arun T. and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** ## **MACA.No.4430 OF 2019** **AGAINST THE AWARD IN OPMV 746/2018 DATED 30-08-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** **AKASH BABU, AGED 22 YEARS, S/O. BABU, CHIRAYIL HOUSE, PALAKKAMPOYIL, MYSOORMALA, MUKKAM P. O., KODIYATHUR, KOZHIKODE.** **BY ADV. SRI.K.P.ANIL KUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 LAWRENCE, S/O. FRANCIS, PARAMMAL HOUSE, VENGERI P. O., KOZHIKODE-673 010. 2 ARUN T., AGED 29 YEARS, S/O. SUNIL KUMAR, THAMARATH HOUSE, KOTHAKULAM PARAMBA, CHALAPPURAM P. O., KOZHIKODE-673 002.** **3 THE UNITED INDIA INSURANCE CO. LTD. REPRESENTED BY THE MANAGER/AUTHORISED SIGNATORY, HOLIDAY CITY CENTRE, 4TH FLOOR, OPP. KURISHUPALLY, KOZHIKODE-673 001.** ## **SRI P.K.MANOJ KUMAR- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.4430 OF 2019** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.746 of 2018 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, 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 27.12.2017, while he was travelling in a Force Traveller bearing registration No.KL-11/AY-4526, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent, from Thiruvananthapuram to Kozhikode. At the place of accident, the said vehicle hit on the rear of a container lorry parked on the side of NH-17. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the Force Traveller by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,09,000/-, under various heads, which was limited to Rs.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. The 3[rd] respondent insurer **MACA.No.4430 OF 2019** -3- filed written statement admitting the insurance coverage of the Force Traveller; however, denying the negligence alleged against the 2[nd] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. No oral or documentary evidence was adduced by the respondents. 4. 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 Force Traveller by the 2[nd] respondent 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.24,500/-, together with interest at the rate of 8% per annum from the date of institution of the application till the date of the deposit, with proportionate cost and the insurer was directed to satisfy the award. **MACA.No.4430 OF 2019** -4- 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. 7. 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. 8. 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 **MACA.No.4430 OF 2019** -5- compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 9. 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. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||The<br>compensation<br>claimed under different<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Pain and suffering|2,00,000/-|10,000/-|| |2|Loss of amenities and|20,000/-|5,000/-|| **MACA.No.4430 OF 2019** -6- ||enjoyment in life|||| |---|---|---|---|---| |3|Loss of earnings|1,30,000/-|5,000/-|| |4|Medical expenses|1,00,000/-|1,000/-|| |5|Transport to hospital|3,000/-|1,000/-|| |6|Damage to clothings|1,00,000/-|500/-|| |7|Extra nourishment|1,50,000/-|2,000/-|| ||Total|**Limited to**<br>**Rs.50,000/-**|**24,500/-**|| 11. The accident occurred on 27.12.2017. At the time of accident, the appellant was aged 21 years. The appellant claimed a monthly income of Rs.25,000/- as a Coolie (Manual Labour). The appellant has also not chosen to mount the box to prove his monthly income. ## 12. 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 **MACA.No.4430 OF 2019** -7- 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. 13. 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 **MACA.No.4430 OF 2019** -8- 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. 14. 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. 15. The document marked as Ext.A2 is the wound certificate and Ext.A6 is the outpatient ticket. As per medical records, the appellant had sustained contusion on right index finger and abrasion on right leg. The appellant had undergone only outpatient treatment. Ext.A7 series of medical bills are for a sum of Rs.990/-. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.5,000/- for a period of one month. The injuries sustained by the appellant are minor in nature. He had undergone **MACA.No.4430 OF 2019** -9- treatment only outpatient treatment. Since the monthly income of the appellant is notionally fixed as Rs.11,000/-, the compensation under the head is re-fixed as Rs.11,000/-, resulting an additional compensation of **Rs.6,000/-** (11,000 - 5,000). 17. 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 just and reasonable, which requires no enhancement in this appeal. 18. Towards damage to clothings, the Tribunal awarded a sum of Rs.500/-. 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.1,000/-** (1,500 - 500). 19. Towards medical expenses, the Tribunal awarded a sum of Rs.1,000/-, covered by Ext.A7 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and **MACA.No.4430 OF 2019** -10- reasonable compensation, which requires no enhancement in this appeal. 20. 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 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. 21. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-, even in the absence of any disability certificate. 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. 22. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.7,000/-** (Rupees seven thousand only) [6,000 + 1,000] 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 **MACA.No.4430 OF 2019** -11- 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 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.D162475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr