Annama v. Reliance General Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** ## **MACA.No.3145 OF 2018** **AGAINST THE AWARD IN OP(MV) 330/2014 DATED 17-01-2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA** ## **APPELLANT/PETITIONER:** **ANNAMA, AGED 72 YEARS W/O AUGUSTIAN, RESIDING AT MANGATT PADATH HOUSE, P.O. CHERUKAD, ATHIODY (VIA), KOZHIKODE - 673 527.** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/2ND RESPONDENT:** **RELIANCE GENERAL INSURANCE COMPANY LTD. 2ND FLOOR, CITADEL ARCADE, OPP. TAGORE CENTINARY HALL, R.C. ROAD, KOZHIKODE - 673 001.** **R1 BY ADV.SMT K.S.SANTHI -STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3145 OF 2018** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.330 of 2014 on the file of the Motor Accidents Claims Tribunal, Vatakara, 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 02.02.2014, while she was walking through the side of a public road. At the place of accident, she was knocked down by a car bearing registration No.KL-56/H362 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,45,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex-parte. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying the negligence alleged against the 1[st] respondent owner-cum-driver. The insurer contended that the **MACA.No.3145 OF 2018** 3 accident occurred due to the negligence on the part of the appellant/claimant. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A8 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 the 1[st] respondent owner-cum-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.40,873/-, which was rounded off to Rs.40,880/-, together with interest at the rate of 9% per annum from the date of petition till date of deposit, with proportionate cost. The insurer was directed to satisfy the award within 30 days from the date of award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this **MACA.No.3145 OF 2018** 4 appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned 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 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 **MACA.No.3145 OF 2018** 5 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<br>under different heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Transport to hospital|4,000/-|2,000/-|| |2|Loss of earnings|20,000/-|10,000/-|5000 x 2 months| |3|Medical bills as per A7 & A8<br>series|20,000/-|10,873/-|| |4|Pain and sufferings|40,000/-|12,000/-|| |5|Loss of amenities|20,000/-|6,000/-|| ||**Total**||40,873/-|Rounded to<br>Rs.40,880/-| 12. The accident occurred on 02.02.2014. At the time of accident, the appellant was aged 68 years. The appellant claimed **MACA.No.3145 OF 2018** 6 a monthly income of Rs.10,000/- as Part Time Sweeper. 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.5,000/-, 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 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 **MACA.No.3145 OF 2018** 7 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 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 **MACA.No.3145 OF 2018** 8 the year 2014, 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.9,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the treatment certificate. As per medical records, the appellant sustained fracture of P1 2[nd] toe leg and soft tissue injuries. She had undergone outpatient treatment for one day. Ext.A7 are the medical bills for Rs.2,221/- and Ext.A8 series are the Ayurvedic bills for Rs.8,644/-, totalling to Rs.10,872/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.5,000/- per month 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.9,500/-, the compensation under the head loss of earning is re-fixed as Rs.28,500/- (9,500 x 3), resulting an additional compensation of **MACA.No.3145 OF 2018** 9 **Rs.18,500/-** . (28,500 – 10,000) 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards damage to clothing and articles, no amount has been awarded by the Tribunal. Considering the fact that the accident is of the year 2014, this Court deem it appropriate to grant a sum of **Rs.1,500/-** , under this head. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.10,873/-, covered by Exts.A7 and A8 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.12,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, **MACA.No.3145 OF 2018** 10 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. 22. Towards loss of amenities the Tribunal awarded a sum of Rs.6,000/-. No materials are placed on record to show that the injuries sustained in the accident had resulted in any permanent disability. Considering the nature of injuries sustained, 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. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.20,000/-** (Rupees Twenty Thousand only) [18,500 + 1,500] 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/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 **MACA.No.3145 OF 2018** 11 Legal Benefit Fund. The disbursement of the amount to the appellant/claimant 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.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** JV **ANIL K.NARENDRAN JUDGE**