Appu T. v. Libeesh S/o Rajan and A.C. Premarajan and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** ## **MACA.No.2324 OF 2010 (C)** **AGAINST THE AWARD IN OPMV 355/2007 DATED 08-10-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER IN OP(MV):** **APPU T., S/O. UNNIYARAPPAN, AGED 51 YEARS, THADATHIL HOUSE, KIZHAKKUM MURI POST, KAKKODI, KOZHIKODE.** **BY ADVS. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **1 LIBEESH S/O. RAJAN, MANARATH MEETHAL HOUSE, KIZHAKKUMURI POST, KAKKODI, KOZHIKODE-673611 2 A.C.PREMARAJAN S/O. RAGHAVAN NAIR, THEKKEKANTH HOUSE, PADINHATTUM MURI AMSOM, KIZHAKKUMURI DESOM, CHLILTHAZHAM, KAKKODI, KOZHIKODE-673 611. 3 THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G.ROAD, MAVOOR ROAD, KOZHIKODE POST, KOZHIKODE 673 001. BY ADVS. R1 & 3 BY ADV. SRI.P.JACOB MATHEW, STANDING COUNSEL R1 BY ADV. SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2324 OF 2010 (C)** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.355 of 2007 on the file of the Principal Motor Accidents 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 22.09.2006, while he was riding in a motorcycle. At the place of accident, the said motorcycle was knocked down by another motorcycle bearing registration No.KL-11/Y-1789 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the offending motorcycle by the 2[nd] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,67,000/-, under various heads. 2. The 3[rd] respondent/insurer filed written statement admitting the insurance coverage of the offending motorcycle involved in the accident; however, denying the negligence alleged against the 1[st] respondent owner-cum-rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and **MACA.No.2324 OF 2010 (C)** **3** it was contended that the compensation claimed is highly excessive. 3. 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. 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 riding of the offending motorcycle by the 2[nd] respondent rider. Since insurance coverage of the offending vehicle is not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.24,272/-, and the insurer was directed to satisfy the award, with interest at the rate of 7% per annum from the date of petition till date of deposit, together with cost of Rs.750/-. 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 **MACA.No.2324 OF 2010 (C)** **4** 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 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 **MACA.No.2324 OF 2010 (C)** **5** 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 compensation claimed under<br>various heads|Amount<br>allowed| |---|---|---| |1|Transportation to hospital|500/-| |2|Damage to clothing|250/-| |3|Loss of earnings|3,000/-| |4|Bystanders expenses|600/-| |5|Treatment Expenses|1,922/-| |6|Pain and suffering|17,000/-| |7|Loss of amenities|1,000/-| ||Total claim|24,272/-| 11. The accident occurred on 22.09.2006. At the time of accident, the appellant was aged 48 years. The appellant claimed a monthly income of Rs.4,000/- as a Coolie (Manual labourer). 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.3,000/-, for the purpose of assessing compensation under various heads. ## 12. In **Ramachandrappa v. Manager, Royal Sundaram** **MACA.No.2324 OF 2010 (C)** **6** ## **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. 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, **MACA.No.2324 OF 2010 (C)** **7** 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. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2006, 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.4,000/-, as claimed in the claim petition, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the wound certificate. Ext.A4 is the treatment book; Ext.A5 is the CT Scan report and Exts.A6 and A7 are case records. As per medical records, the appellant had sustained fracture on right zygomatic arch, fracture lateral wall of right orbit, fracture anterior and **MACA.No.2324 OF 2010 (C)** **8** posterior wall of right maxillary sinus and Haemosinus, fracture mandible body right side and left side and lacerated wound 2 x 1cm. below left knee. As per Ext.A4 treatment book the appellant was admitted at Medical College Hospital, Kozhikode on 23.09.2006 and discharged on 29.09.2006. In Ext.A2 wound certificate the aforesaid injuries are noticed. Ext.A8 medical bills are for a sum of Rs.1,922/-. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.3,000/-, for a period of one month. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of one month fixed by the Tribunal for granting loss of earning is re-fixed as three months. Since the monthly income of the appellant is fixed notionally as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.12,000/- (4,000 x 3), resulting an additional compensation of **Rs.9,000/-** (12,000 - 3,000) . 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for seven days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. 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 re-fixed as **MACA.No.2324 OF 2010 (C)** **9** Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500) under this head. 18. Towards bystander expenses the Tribunal awarded a sum of Rs.600/-. The accident is of the year 2006 and the appellant had undergone inpatient treatment for seven days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.1050 (150 x 7), resulting an additional compensation of **Rs.450/-** (1,050 - 600) under this head. 19. Towards extra nourishment no amount was awarded by the Tribunal. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of _**-**_ **Rs.700/** (100 x 7) as compensation under this head. 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2006, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 21. Towards treatment expenses, the Tribunal awarded a sum of Rs.1,922/-, covered by Ext.A8 series of medical bills. In **MACA.No.2324 OF 2010 (C)** **10** 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.17,000/-. 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 also be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 23. Towards loss of amenities the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head re-fixed as Rs.5,000/-, resulting an additional compensation of **Rs.4,000** /- (5,000 - 1,000) under this head. 24. In the result, the appellant will be entitled for payment of an additional compensation of **Rs. 15,150/-** (Rupees fifteen thousand one hundred and fifty only) [9,000 + 500 + 450 + 700 + 500 + 4000] 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 satisfy the additional compensation granted in this appeal, together with interest, within a period of **MACA.No.2324 OF 2010 (C)** **11** 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** Skk//071119