Arathi C v. Dhanesh T and Ajaya Kumar N and Reliance General Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941** ## **MACA.No.2504 OF 2018** **AGAINST THE AWARD IN OP(MV)NO.89/2017 DATED 26-03-2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TALIPARAMBA** ## **APPELLANT/PETITIONER IN OP(MV)NO.89/2017 :** **ARATHI C** **AGED 22 YEARS, D/O.KRISHNAN NAMBOODIRI, CHERUVALLI ILLAM, SREESTHA WEST P.O, CHERUTHAZHAM VILLAGE, KANNUR DIST. PIN-670303.** **BY ADV. SRI.P.M.UNNI NAMBOODIRI** ## **RESPONDENT/RESPONDENTS :** **1 DHANESH T AGED 50 YEARS, S/O DAMODHARAN V.V, THALAPPATH, MELATHIYADAM, SREESTHA PO, KANNUR DISTRICT, PIN670303.** - **2 AJAYA KUMAR N. S/O.KUNHIRAMAN, NETTUR HOUSE, MANDOOR P.O., KANNUR DISTRICT, PIN – 670501 (RC OWNER OF THE VEHICLE NO.KL-59/C-6099)** - **3 RELIANCE GENERAL INSURANCE COMPANY LIMITED 1ST FLOOR, ADITHIYA TOWER, OPP-RTO OFFICE, KANNUR DISTRICT, PIN – 670 001** **R1-2 BY ADV. SRI.I.V.PRAMOD R3 BY ADV. K.S. SANTHI R3 BY ADV. SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2504 OF 2018** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.89 of 2017 on the file of the Motor Accidents Claims Tribunal, Taliparamba, 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 09.08.2016, while she was travelling as pillion rider in a motorcycle bearing registration No.KL-13/L-1150. At the place of accident, the motorcycle was hit by a tipper lorry bearing registration No.KL-59/C-6099 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of tipper lorry by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,29,750/-, under various heads, which was limited to Rs.4,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent driver did not file written statement. The 2[nd] respondent owner filed **MACA.No.2504 OF 2018** **3** written statement admitting the accident; however, denying the negligence alleged against the 1[st] respondent driver. It was contended that the accident was due to the negligence on the part of the rider of the motorcycle on which the appellant/claimant was travelling as pillion rider and the compensation claimed under various heads are excessive. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the tipper lorry; however, denying the negligence alleged against the 1[st] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is on the higher side. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the 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 tipper lorry by the 1[st] respondent. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to **MACA.No.2504 OF 2018** **4** indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,15,800/-, together with interest at the rate of 8% per annum from the date of petition till date of deposit, with proportionate cost and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant, the learned counsel for respondents 1 and 2 and also the learned Standing Counsel for the 3[rd] 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 **MACA.No.2504 OF 2018** **5** 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 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 **MACA.No.2504 OF 2018** **6** 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; |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>allowed|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|30,750/-|25,500/-|8,500x3| |2|Partial loss of earning|--|--|| |3|Transport to hospital|10,000/-|4,900/-|| |4|Extra nourishment|25,000/-|3,000/-|| |5|Damage to clothing<br>and articles|4,000/-|1,500/-|| |6|Medical expenses|50,000/-|48,900/-|Ext.4 series| |7|Bystander's expenses|10,000/-|3,000/-|500x6| |8|Pain and suffering|1,50,000/-|25,000/-|Injuries noted in<br>Ext.A2| |9|Compensation<br>for<br>permanent disability|1,00,000/-|-|| |10|Compensation<br>for<br>loss of amenities,<br>loss of earning power|50,000/-|4,000/-|| ||TOTAL|**4,29,750/-**<br>**Limited**<br>**4,00,000/-**|**1,15,800/-**|| 12. The accident occurred on 09.08.2016. At the time of accident, the appellant was aged 22 years. The appellant claimed a monthly income of Rs.10,250/- as an Instructor in 'Nirmala Private Vocational Training Institute'. Other than Ext.A7 Degree Certificate, no materials were produced **MACA.No.2504 OF 2018** **7** 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.8,500/-, 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 **MACA.No.2504 OF 2018** **8** 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. 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. **MACA.No.2504 OF 2018** **9** 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2016, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court finds that the monthly income of Rs.10,250/- claimed by the appellant is not on the higher side, which is taken as her notional monthly income for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate, which would show that, in the accident, the appellant sustained fracture on left leg tibia and fibula. Ext.A4 is the discharge summary. Ext.A5 is the series of medical bills for an amount of 48,900/-. The appellant had undergone inpatient treatment for a period of 6 days. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.25,500/-, at the rate of Rs.8,500/- 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 **MACA.No.2504 OF 2018** **10** Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.10,250/-, the compensation under the head loss of earning is re-fixed as Rs.30,750/- (10,250 x 3), resulting an additional compensation of **Rs.5,250/-** (30,750 – 25,500). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 6 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.4,900/-. 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 bystander expenses the Tribunal awarded a sum of Rs.3,000/- (500 x 6). Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,000/- (500 x 6). The accident is of the year 2016 and the appellant had undergone inpatient treatment for 6 days. **MACA.No.2504 OF 2018** **11** 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 these heads cannot be said to be on the lower side, which requires no enhancement in this appeal. 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,500/-. Considering the fact that the accident is of the year 2016, the compensation granted by the Tribunal cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.48,900/-, covered by Ext.A5 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the treatment the appellant **MACA.No.2504 OF 2018** **12** 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. 23. Towards compensation for permanent disability, no amount has been awarded by the Tribunal. In the absence of any document to prove permanent disability arising out of the injuries sustained in the motor accident, the Tribunal rightly declined the compensation for permanent disability. 24. Towards loss of amenities, the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, when no documents are placed on record to prove permanent disability. Therefore, the appellant is not entitled for any enhancement under this head. 25. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.5,250/-** **MACA.No.2504 OF 2018** **13** (Rupees Five thousand two hundred and fifty only) 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 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 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/-** ## **ANIL K.NARENDRAN, JUDGE** AV/19/11