Arshak @ Arshak Abdul Kareem S/o Abdul Kareem @ Abdul Saleem v. Suneera, Ramees and Reliance General Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941** ## **MACA.No.3353 OF 2015(F)** **AGAINST THE AWARD IN OP(MV) 1587/2013 DATED 24-08-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **ARSHAK @ ARSHAK ABDUL KAREEM S/O. ABDUL KAREEM @ ABDUL SALEEM, AMJAD NIVAS, PALLIMUKKU, P.O. OZHUKUR, MALAPPURAM – 673 642** ## **BY ADV. SRI.N.V.P.RAFEEQUE** ## **RESPONDENTS/RESPONDENTS:** **1 SUNEERA, AGE NOT KNOWN PUTHANKOTT PULAYA KALATHIL HOUSE, KARIKKITTAMKUNNU P.O., MANNARKAD P.O, PALAKKAD - 678 583 (OWNER OF KL 14 L 5741 NUMBER CAR) 2 RAMEES, AGED 20 YEARS S/O. ALIKUTTY, CHENATTUKUZHIYIL HOUSE, ANAS MANZIL, MORAYUR AMSOM, MONGAM HILLTOP, PIN – 673 649 (DRIVER OF KL 14 L 5741 NUMBER CAR) 3 RELIANCE GENERAL INSURANCE COMPANY LIMITED 2ND FLOOR, CITADEL ARCADE, R.C. ROAD, OPPOSITE TAGORE CENTENARY HALL, KOZHIKODE - 673 032 (VALID UP TO 03/04/2014 INSURER OF KL 14 L 5741 NUMBER CAR) R3 BY ADV. SRI.GEORGE CHERIAN SR. R3 BY ADV. SMT.LATHA SUSAN CHERIAN R3 BY ADV. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3353 of 2015(F) 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1587 of 2013 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, 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 23.06.2013, while he was travelling in a car bearing registration No.KL-14/L-5741, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent . At the place of accident, the car dashed against a tree. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner remained absent and she was set ex parte. The 2[nd] respondent driver filed written statement, denying negligence alleged against him. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying the negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated MACA No.3353 of 2015(F) 3 in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with connected matter and Exts.A1 to A10 were marked on the side of the claimants. The respondents have not chosen to adduce any oral or documentary 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 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.1,80,780/-, (which was rounded off to Rs.1,80,800/-) together with interest at the rate of 9% 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 and also the learned Standing Counsel for the 3[rd] respondent MACA No.3353 of 2015(F) 4 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 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 MACA No.3353 of 2015(F) 5 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<br>compensation<br>claimed under different<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Transport to hospital|5,000|2,000|| |2|Hospitalization for 9<br>days as per Ext.A9|5,000|7,200|800x9| |3|Loss of earnings for 6<br>months from the dt. Of<br>accident|1,00,000|30,000|5000x6| |4|Medical expenses|1,50,000|76,180|1,06,180-30,000| |5|Future treatment|nil|25,400|1/3 of ME| |6|Pain and sufferings|1,00,000|25,000|| |6|Loss of amenities|1,00,000|15,000|| ||Total||1,80,780|Rounded<br>to<br>1,80,800| 12. The accident occurred on 23.06.2013. At the time of accident, the appellant was aged 20 years. The appellant claimed a monthly income of Rs.9,000/- as coolie. The appellant has not chosen to mount the box to prove his monthly income. In the MACA No.3353 of 2015(F) 6 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 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. MACA No.3353 of 2015(F) 7 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2013, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.9,000/claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. MACA No.3353 of 2015(F) 8 16. The document marked as Ext.A8 is the wound certificate and Ext.A9 is the discharge summary. As per medical records, in the accident, the appellant sustained comminuted intra articular fracture talus (L); closed intra articular distal end radius fracture (L) wrist; cut lacerated wound of 5x4 cm over anterolateral aspect of (L) leg upper 3[rd] ; haemoptysis following trauma; lung contusion; fracture lower end of radius with intra capsular extension with cortical break at the radial aspect as well as the medial aspect; avulsion fracture of styloid process of ulna; dsiruption of scapho lunate ligament; and comminuted fracture of talus with minimal displacement and fragmentation. He had undergone inpatient treatment for a period of 9 days. Ext.A10 series of medical bills are for a sum of Rs.1,06,180/-. Bill for a sum of Rs.30,000/- (item No.12) was objected by the 3[rd] respondent insurer. During the course of arguments, it was submitted by the learned counsel on both sides that the said bill was only an advance bill. Therefore, the Tribunal cannot be found fault with in limiting the compensation under the head treatment expense to Rs.76,180/-, excluding the aforesaid bill for Rs.30,000/-. 17. Towards loss of earning, the Tribunal awarded a sum of MACA No.3353 of 2015(F) 9 Rs.30,000/-, at the rate of Rs.5,000/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.9,000/-, the compensation under the head loss of earning is re-fixed as Rs.54,000/- (9,000 x 6), resulting an additional compensation of **Rs.24,000/-** . (54,000 – 30,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 9 days. The accident is of the year 2013. 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 under this head is re-fixed as Rs.2,500/-, resulting an additional compensation of **Rs.500/-** (2,500 – 2,000). 19. Towards hospitalisation charges (bystander's expense and extra nourishment) the Tribunal awarded a sum of Rs.7,200/-. The accident is of the year 2013 and the appellant had undergone inpatient treatment for 9 days. Considering the MACA No.3353 of 2015(F) 10 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. 20. 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 had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs.5,000/-** (30,000 – 25,000). 21. Towards future treatment, the Tribunal awarded a sum of Rs.25,400/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, 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. 22. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. No documents were placed on record before the Tribunal to prove any permanent disability of the appellant, on account of the injuries sustained in the accident. In the absence MACA No.3353 of 2015(F) 11 of any such materials, 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. 23. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.29,500/-** (Rupees twenty nine thousand and five hundred only) [(24,000 + 500 + 5,000] 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. 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 page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the MACA No.3353 of 2015(F) 12 Tribunal, with copy to the learned Standing Counsel for the 3[rd] respondent 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. **Sd/-** **ANIL K.NARENDRAN** JV **JUDGE**