Bijoy Jose v Balasubramanyan; R. Subbugounder; National Insurance Company Ltd. (MACA No. 2498 of 2010) - Against Award in OP(MV) No.728/2005

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** ## **MACA.No.2498 OF 2010** **AGAINST THE AWARD IN OP(MV)No.728/2005 DATED 19-03-2010 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** **APPELLANT/CLAIMANT:** **BIJOY JOSE S/O.JOSE, AGED 28 YEARS, KANGARAPPALY HOUSE, NEAR ST.GEORGE CHURCH, VELIYAMBAM KARA, NADAVAYAL VILLAGE, BATHERY, WYNAD** **BY ADV. SMT.K.S.SUMITHA** ## **RESPONDENTS/RESPONDENTS:** **1 BALASUBRAMANYAN AGED 27 YEARS, S/O.GANESH, 4/128,MOTTAYAMPUTHUR, MOHANTHAR ROAD, VLAYAPPATTY VILLAGE, NAMAKKAL DISTRICT, TAMILNADU 637020 2 R.SUBBUGOUNDER S/O.GOUNDER NO.7.,R.C.COMPLEX,260261, S.G.MUTT ROAD, CHAMARAJPET,BANGALORE, KARNATAKA 560018 3 NATIONAL INSURANCE COMPANY LTD KANGAYAM BRANCH, BANGALORE, REP.BY ITS DIVISIONAL MANAGER, ERNAKULAM 35** **R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA SMT K.S.SANTHI- STANDING COUNSEL FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **-:2:-** MACA 2498/10 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.728 of 2005 on the file of the Additional 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 him in a motor accident, which occurred on 10.07.2004, while he was travelling as a pillion rider on a motorcycle bearing registration No.KL-7/AD-6608. At the place of accident, the motorcycle was hit by a gas tanker lorry bearing registration No.KL-01/D-9639 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 lorry by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the **-:3:-** MACA 2498/10 accident; however, denying the negligence alleged against the 1[st] respondent driver of that vehicle. 3. Before the Tribunal, Exts.A1 to A6 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 driving of the offending vehicle by the 1[st] respondent 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.65,427/- together with interest at the rate of 8% per annum from the date of petition, i.e., 01.02.2005 till realisation, with a cost of Rs.1,500/- and the insurer was directed to satisfy the award. 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. Since insurance coverage of the offending MACA 2498/10 ## **-:4:-** vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 19.11.2019. 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 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 MACA 2498/10 ## **-:5:-** 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; |Pain and suffering|:|18,000| |---|---|---| |Medical expenses|:|28,250| |Bystander expenses|:|8,000| |Transportation expenses|:|1,500| |Loss of income|:|10,000| |Loss of amenities|:|6,000| |Extra nourishment|:|2,500| |Damage to clothing|:|750| |Total||67,800/-| 11. The accident occurred on 10.07.2004. At the time of accident, the appellant was aged 23 years. The appellant claimed a monthly income of Rs.4,000/-. Though it is not MACA 2498/10 ## **-:6:-** discernible from the award, the monthly income fixed by the Tribunal, the Tribunal granted Rs.10,000/- towards loss of earnings without specifying the period. ## 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 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 MACA 2498/10 ## **-:7:-** 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 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 2004, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court is of the view that the monthly income of Rs.4,000/- claimed by the appellant is not on the higher side MACA 2498/10 ## **-:8:-** which can be taken as the notional monthly income of the appellant for the purpose of awarding compensation under various heads. 15. The document marked as Ext.A2 is the wound certificate issued from Ernakulam Medical Centre. Ext.A5 is the discharge summary. As per medical records, the appellant had sustained abrasions on left side of forehead, below left eye, on left forearm, left hand, contusion on left leg and fracture of both bones left leg. X-ray revealed fracture of both bones of left leg. The discharge summary would show united fracture shaft of tibia left with implant INSITU. He had undergone implant removal on 20.01.2009 under general anesthesia. He had undergone inpatient treatment under two different spells for a total period of 9 days (6+3). Appellant produced medical bills for Rs.58,216.60 out of which Sl. Nos.2, 27 and 32 are receipts for advance. Therefore, the Tribunal deducted a sum of Rs.30,000/from the said amount and a sum of Rs.28,216.60 was awarded towards medical expenses. (58,216.60 - 30,000). 16. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries and the treatment the appellant had undergone, he can be granted loss MACA 2498/10 ## **-:9:-** of earning for a period of 4 months. Since the monthly income of the appellant is fixed as Rs.4,000/, the compensation under the head loss of earning is re-fixed as Rs.16,000/- (4,000 x 4), resulting an additional compensation of **Rs.6,000/-** (16,000 – 10,000). 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 9 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, in the two different spells, the compensation under this head is re-fixed as Rs. 2,500/-, resulting an additional compensation of **Rs. 1,000/-** (2,500 - 1,500). 18. Towards bystander expenses the Tribunal awarded a sum of Rs.800/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,500/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 9 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.1,350/- (150 x 9), resulting MACA 2498/10 ## **-:10:-** an additional compensation of **Rs.550/-** (1,350 - 800). The compensation awarded by the Tribunal under the head extra nourishment cannot be said to be on the lower side, which requires no enhancement in this appeal. 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.750/-. The accident is of the year 2004. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this aspect. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.28,250/-, covered by Ext.A6 series of medical bills. The Tribunal has stated valid reasons to deduct Rs.30,000/- from the total amount covered by Ext.P6 series of medical bills (Sl. Nos.2, 27 and 32). 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. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.18,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the MACA 2498/10 ## **-:11:-** 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. 22. Towards loss of amenities the Tribunal awarded a sum of Rs.6,000/-. In the absence of any disability certificate, 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. In the result, the appellant will be entitled for payment of an additional compensation of **Rs. 7,550/-** (Rupees Seven thousand five hundred and fifty only) [6,000+1,000+550] 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 three 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 the amount to the appellant shall be in terms of the directives issued by this Court in Circular No.3 of MACA 2498/10 ## **-:12:-** 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** vps