Annie.K.P v. P.P. Santosh Kumar and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941** ## **MACA.No.58 OF 2010** **AGAINST THE AWARD IN OP(MV) No.2565/2004 DATED 07-02-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** **ANNIE.K.P, AGED 40 YEARS, WIFE OF NARAYANAN, KADAVIL HOUSE,, DESOM P.O., CHENGAMANAD VILLAGE,, ALUVA TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER** ## **RESPONDENT/S:** **1 P.P. SANTHOSH KUMAR S/O.PRABHAKARAN PILLAI, VANAJA BHAVAN,, EDAPPALLY P.O., COCHIN-682 024. 2 THE ORIENTAL INSURANCE CO. LTD. NEAR GOVERNMENT HIGH SCHOOL,, EDAPPALLY, COCHIN-682 024.** **R1 BY ADV. SRI.TITUS MANI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 58 of 2010 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2565 of 2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 21.01.1998, while she was walking on the side of a public road. At the place of accident, she was knocked down by a car owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex parte. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying negligence alleged against its driver. The insurer disputed the age, -3- MACA. No. 58 of 2010 occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. The document marked as Ext.X1 is the case diary. 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 car by its 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.25,860/-, together with interest at the rate of 7% per annum from the date of petition till date of award and thereafter at 9% per annum till realisation, with proportionate cost, and the 2[nd] respondent insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this -4- MACA. No. 58 of 2010 Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] 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 compensation must be 'just' and it cannot be a bonanza; not a -5- MACA. No. 58 of 2010 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; |**Head**|**Amount awarded**| |---|---| |Hospitalisation, transportation|| |damage to clothing & articles|| |and Extra nourishment|2,500| |Loss of earnings|7,500| -6- MACA. No. 58 of 2010 Treatment expenses 860 Pain and suffering and Discomforts & inconvenience 15,000 --------------25,860/========= 11. The accident occurred on 21.01.1998. At the time of accident, the appellant was aged 35 years. The appellant claimed a monthly income of Rs.3,500/- as coolie (manual labourer).The appellant has not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,500/-, 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 working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the -7- MACA. No. 58 of 2010 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 -8- MACA. No. 58 of 2010 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. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 1998, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income notionally fixed by the Tribunal is not on the lower side, which requires no enhancement in this appeal. 15. The document marked as Ext.A4 is the wound certificate and Ext.A5 is the treatment certificate. As per medical records, the appellant sustained laceration on right pareital region, right supra orbital region, sutured abrasion on -9- MACA. No. 58 of 2010 lower lip, contusion back of chest and right knee, medical collateral ligament injury right knee and wedge compression fracture of D5 vertebra. She had undergone inpatient treatment for a period of 12 days. Ext.A6 series of medical bills are for a sum of Rs.860/-. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.7,500/-, at the rate of Rs.2,500/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 5 months. Therefore, the compensation under the head loss of earning is re-fixed as Rs.12,500/- (2,500 x 5), resulting an additional compensation of **Rs.5,000/-** (12,500 – 7,500). 17. Towards transportation to hospital; damage to clothing and articles; and extra nourishment, the Tribunal awarded a consolidated amount of Rs.2,500/-. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 12 days. The accident is of -10- MACA. No. 58 of 2010 the year 1998. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the above heads is re-fixed as follows; transportation expensesRs.2,000/-; bystander expenses-Rs.1,800/- (150 x 12); extra nourishment-Rs.1,200/- (100 x 12); and damage to clothingRs.1,000/-; resulting an additional compensation of **Rs.3,500/-** [(2,000 + 1,800 + 1,200 + 1,000) – 2,500]. 18. Towards medical expenses, the Tribunal awarded a sum of Rs.860/-, covered by Ext.A6 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. 19. As compensation towards pain and suffering, 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 awarded by the Tribunal under this head is re- -11- MACA. No. 58 of 2010 fixed as Rs.25,000/-, resulting an additional compensation of **Rs.10,000/-** (25,000 – 15,000). 20. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.18,500/-** (Rupees eighteen thousand five hundred only) [5,000 + 3,500 + 10,000] 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 Legal Benefit Fund. The disbursement of additional 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 -12- MACA. No. 58 of 2010 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 receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. All pending interlocutory applications in this appeal are closed. Sd/- **ANIL K.NARENDRAN JUDGE** das