Akhilesh K.C. v. Universal Sampo General Insurance Company Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941** ## **MACA.No.2759 OF 2014** **AGAINST THE AWARD IN OPMV 899/2013 DATED 28-06-2014 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT:** **AKHILESH K.C AGED 30 YEARS S/O.VASUDEVAN NAIR, RESIDING AT 210 A, NAGANADATH HOUSE, NORTH BEYPORE P.O., NADUVATTAM VIA, KOZHIKODE.** **BY ADV. SRI.AVM.SALAHUDDEEN** ## **RESPONDENT:** **UNIVERSAL SAMPO GENERAL INSURANCE COMPANY LTD 2ND FLOOR, CENTRAL ARCADE, AZAD ROAD, NORTH END, KALOOR, COCHIN-682017.** **R1 BY ADV. DR.ELIZABETH VARKEY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2759 OF 2014 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.899 of 2013 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode, 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 25.12.2012, while he was riding a motorcycle bearing registration No.KL-11/AM-8727. At the place of accident, the said motorcycle was hit by a goods autorickshaw bearing registration No.KL-11/AP-1858 owned and driven by the 1[st] respondent before the Tribunal and insured with the respondent herein. As a result of the accident, the appellant sustained injuries. Alleging that the accident occurred due to rash and negligent driving of the offending goods autorikshaw by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.2,35,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent alone filed written statement. In the written statement, it is stated that there was no negligence on the part of the 1[st] respondent and 3 MACA No.2759 OF 2014 the accident occurred due to the negligence on the part of the appellant/claimant. The age, occupation and monthly income of the appellant were denied and it was contended that the amount of compensation claimed is excessive. 3. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant and no oral evidence was adduced by both sides. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to rash and negligent driving of the goods autorickshaw by the 1[st] respondent owner-cum-driver and in such circumstances, the 2[nd] respondent Insurer is liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.74,517/-, which was rounded to Rs.75,000/- and directed the respondent insurer to deposit the said amount together with interest at the rate of 8% per annum from the date of petition till the date of realisation, together with proportionate cost. The insurer was directed to satisfy the award within 30 days from the date of award. The insurer was directed to produce two cheques; one for the balance court fee for the excess amount awarded and 4 MACA No.2759 OF 2014 another cheque for the balance amount to be given to the petitioner as per rules. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and also the learned Standing Counsel for the respondent Insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for any enhancement of compensation awarded by the Tribunal under different heads. 8. 10. 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 5 MACA No.2759 OF 2014 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. 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; |SI.<br>No|Compensation<br>claimed under<br>different heads|Amount<br>claimed|Amount<br>awarded|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earnings|50,000/-|9,000/-|4500x2<br>months| 6 MACA No.2759 OF 2014 |2|Transport to hospital|2,000/-|1,000/-|| |---|---|---|---|---| |3|Damage to clothings<br>and articles|1,000/-|500/-|| |4|Extra nourishment|2,000/-|500/-|| |5|Bystander's<br>expenses|5,000/-|5,250/-|250x21<br>days<br>(Exts.A6,<br>A7andA10)| |6|Treatment expenses|20,000/-|38,267/-|Exts.A11<br>series and<br>A12 series| |7|Pain and sufferings|30,000/-|15,000/-|| |8|Loss of amenities|20,000/-|5,000/-|| ||Total||Rs.74,517/-|| 11. The accident occurred on 25.12.2012. At the time of accident, the appellant was aged 28 years. He claimed a monthly income of Rs.10,000/- as a Salesman in a plumping shop. No reliable materials were placed on record to prove the monthly income. 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.4,500/-, for the purpose of assessing compensation under various heads. 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 7 MACA No.2759 OF 2014 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. 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 8 MACA No.2759 OF 2014 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. 14. In the instant case the accident is of the year 2012. Having considered the law laid down in the decisions referred to supra and also the economic condition prevailed as on the date of accident, this Court deem it appropriate to re-fix the monthly income of the appellant notionally at Rs.8,500/-, for the purpose of assessing compensation under various heads. 15. Ext.A2 wound certificate and Ext.A3 discharge summary would show that, as a result of accident, the appellant sustained fracture to 3[rd] metatarsal, abrasions on right foot, abrasions on right knee and dorsum of right foot. He had undergone in-patient treatment at R.M. Hospital, Beypore and thereafter, at General Hospital, Kozhikode. He was admitted at Government General Hospital, Kozhikode on 27.12.2012 and discharged on 09.01.2013. He had undergone 9 MACA No.2759 OF 2014 in-patient treatment for a period of 21 days. Exts.A6 and A7 discharge summaries issued by the District Co-operative Hospital, Kozhikode would show that the appellant had sustained fracture to navicular bone (right) and had undergone an operation at District Co-operative Hospital, Kozhikode. Exts.A11 and A12 series of medical bills are for a sum of Rs.38,267/-. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.9,000/- at the rate of Rs.4,500/- for a period of two months. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court deem it appropriate to grant loss of earning for a period of four months. Since the monthly income of the appellant is notionally fixed at Rs.8,500/-, the compensation under this head is re-fixed as Rs.34,000/- (8,500x4), resulting an additional compensation of **Rs.25,000/-** (9,000-34,000). 17. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1000/-. Considering the nature of injuries sustained and the treatment that the appellant had undergone, this Court deem it appropriate to re-fix the compensation under the said head as Rs.3,000/-, resulting an additional 10 MACA No.2759 OF 2014 ## compensation of **Rs.2,000/-** (3,000 - 1,000). 18. Towards damage to clothings, 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/-** . 19. Towards bystander expenses, the Tribunal awarded a sum of Rs.5,250/- at the rate of Rs.250/- for a period of 21 days of in-patient treatment. Towards extra nourishment, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head extra nourishment is re-fixed as Rs.3,150/- (150 x 21), resulting an additional compensation of **Rs.2,650/-** (3,150 - 500). The compensation under the head bystander expenses represents just and reasonable compensation, which warrants no enhancement in this appeal. 20. Towards treatment expenses, the Tribunal awarded a sum of Rs.38,267/-, covered by Exts.A11 and A12 series of medical bills. In the absence of any further materials, the compensation under this head represents just and reasonable 11 MACA No.2759 OF 2014 compensation, which warrants no enhancement in this appeal. 21. Towards pain and sufferings, 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 under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 22. Towards loss of amenities, the Tribunal awarded a sum of Rs.5,000/-. No materials are placed on record to prove any permanent disability that had arisen out of the injuries sustained in the accident. In such circumstances, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which warrants no enhancement in this appeal. 23. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.30,650/-** (Rupees Thirty Thousand Six Hundred and Fifty only) [25,000 + 2,000 + 1,000 + 2,650] 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 12 MACA No.2759 OF 2014 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** **yd**