Asharaf K.A. Parelvadakkethil v. Easow T.T. and New India Assurance Company Ltd and V.V. Marykutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **MACA.No.818 OF 2017** **AGAINST THE AWARD IN OPMV 1843/2014 DATED 20-10-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/S:** **==> picture [83 x 118] intentionally omitted <==** **ASHARAF K.A. PARELVADAKKETHIL,CHAMAMPATHAL P.O, VAZHOOR,KOTTAYAM.** **BY ADVS. SRI.K.A.HASSAN SMT.JULIA PRIYA RESHMY** ## **RESPONDENT/S:** |**1**|**EASOW T.T.**| |---|---| ||**THUNDIYIL HOUSE,KURIANNOOR**| ||**P.O,PATHANAMTHITTA-681 001.**| |**2**|**NEW INDIA ASSURANCE COMPANY LTD**| ||**KOTTAYAM-686 001.**| |**3**|**V.V. MARYKUTTY**| ||**KATTAYIL HOUSE, KURIYANOOR**| ||**P.O.,PATHANAMTHITTA 681 001.**| ## **OTHER PRESENT:** ## **SRI A.A.ZIYAD RAHMAN- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.818 of 2017 ..2.. ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1843 of 2014 on the file of the Motor Accidents Claims Tribunal, Kottayam, 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 27.04.2014, while he was riding a motorcycle bearing registration No.KL-33/E-2028. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-E/J3951 driven by the 1[st] respondent, and insured with the 2[nd] respondent. In the accident, he sustained injuries. 3[rd] respondent is the insured of the car, as on the date of accident. 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.4,50,000/- under various heads, which was limited to Rs.2,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent filed written MACA.No.818 of 2017 ..3.. statement, admitting the accident. He contended that that the accident happened due to the rash and negligent riding of the motorcycle by the appellant/claimant. 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 its driver. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant. On the side of the respondents, Exts.B1 and B2 were marked. 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.99,500/-, together with interest at the MACA.No.818 of 2017 ..4.. rate of 9% per annum from the date of petition till realisation 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 2[nd] 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 MACA.No.818 of 2017 ..5.. '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 viewed through MACA.No.818 of 2017 ..6.. 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<br>.|Head of Claim|Amount<br>claimed(Rs)|Amount<br>allowed(Rs)|Basic vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earnings|75,000|24,000|8000x3 months -<br>reasonable rate| |2|Transport to hospital|10,000|3,000|Considering<br>hospitalization and<br>repeated<br>OP<br>consultations| |3|Extra nourishment|10,000|500|Considering<br>hospitalization for 02<br>days@250per day| |4|Damage to clothing and<br>articles|2,000|1,000|Moderate rate| |5|Bystander Expenes|3,000|2,000|In view of the IP<br>treatment 02 days and<br>nature of injuries| |6|Medical Expenses|50,000|19,000|Supported by Ext.AA8<br>series Medical Bills| |7|Future Medical<br>Expenses||15,000|In view of the nature<br>of injuries| |8|Pain and sufferings|1,00,000/-|20,000|in view of the grievous<br>injuries| |9|Loss of amenities|50,000|15,000|Reasonable<br>considering the nature<br>of injuries| |10|Permanent disability|1,00,000|Not allowed|Not supported by<br>evidence| |11|Loss of earning power|50,000/-|Not allowed|Not supported by<br>evidence| ||**TOTAL**|**4,50,000/-**<br>limited to<br>**2,00,000/-**|**99,500/-**|With 9% interest<br>and proportionate<br>cost| MACA.No.818 of 2017 ..7.. 12. The accident occurred on 27.04.2014. At the time of accident, the appellant was aged 37 years. The appellant claimed a monthly income of Rs.15,000/- as an em-paneled conductor. 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.8,000/-, 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 MACA.No.818 of 2017 ..8.. 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. 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 MACA.No.818 of 2017 ..9.. 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 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.9,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate. Ext.A4 is the discharge summary and Ext.A5 is the CT Scan report. As per the medical records, in the accident, the appellant sustained lacerated wound upper lip 1x2cm; loss MACA.No.818 of 2017 ..10.. of three teeth from uppor incisor and one lower incisor; abrasion 1x1cm over the right ankle, bleeding both nostrils; mild head injury; Cervical sprain and contusion over lower jaw. CT brain showed nasal septum is deviated to left side with no features of intracranial injury. CT-spine showed no bony injury. He appellant had undergone inpatient treatment for a period of two days. Thereafter, the appellant continued out patient treatment at Dental College, Kottayam from 29.04.2014 to 22.07.2014, as evidenced by Ext.A6. The document marked as Ext. A7 is the photograph of the appellant, which shows that the lost teeth are not replaced. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.48,000/-, at the rate of Rs.8,000/- 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 just and reasonable. Since the monthly income of the appellant is re-fixed notionally as MACA.No.818 of 2017 ..11.. 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 **Rs.4,500/-** (28,500 - 24,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 2 days. The accident is of the year 2014. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone and also the subsequent treatment at the Dental College, Kottayam, as borne out from medical records, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs. 1,000/-** (3,000 - 2,000). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.2,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2014 and the appellant had undergone inpatient treatment for 2 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from MACA.No.818 of 2017 ..12.. medical records, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2014, the compensation under this head is re-fixed as Rs.1,250/-, resulting an additional compensation of **Rs.250/-** (1,250 – 1,000). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.19,000/-, covered by Ext.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. 22. Towards future medical expenses, the Tribunal awarded a sum of Rs.15,000/-. The appellant lost 4 teeth and as per Ext.A7 photograph the lost teeth are not replaced. Considering the nature of injuries sustained and the treatment MACA.No.818 of 2017 ..13.. the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the future medical expenses is re-fixed as Rs. 25,000/-, resulting an additional compensation of **Rs.10,000/-** (25,000 - 15,000) under this head. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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 be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 24. 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. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head cannot be said to be MACA.No.818 of 2017 ..14.. on the lower side, which requires no enhancement in this appeal. 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs. 15,750/-** (Rupees fifteen thousand seven hundred and fifty only) [4,500 + 1,000 + 250 + 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.D162475/2016 dated 07.11.2019. The appellant shall submit his MACA.No.818 of 2017 ..15.. Bank account details (attested copy of the relevant page of the Bank pass book 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. Sd/- **ANIL K. NARENDRAN, JUDGE** **kkj**