Biju Padman @ Biju A.P. v. Finu John, VySakh Y. and Bajaj Allianz General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **MACA NO. 4751 OF 2019** **AGAINST THE AWARD DATED 10.05.2019 IN O.P.(MV)NO.1189 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA.** ## **APPELLANT/PETITIONER:** **BIJU PADMAN @ BIJU A.P., AGED 41 YEARS, S/O.PADMANABHAN, AMBUKUNNEL HOUSE, MULAVOOR.P.O., MULAVOOR VILLAGE, MULAVOOR TALUK, ERNAKULAM DISTRICT PIN-686 673.** **BY ADVS. T.K.KOSHY SRI.ANIL GEORGE** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** **1 FINU JOHN, S/O.JOHN, KALLUNKAL HOUSE, KARUKADOM.P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN-686 691. 2 VYSAKH Y., S/O.P.I.YACOB, PAREKKARA HOUSE, RAMALLOR KARA, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN-686 691. 3 BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., REPRESENTED BY PENINSULAR HONDA, N.H.47, VYTILLA ROAD, BYPASS ROAD, MARADU.P.O., COCHIN, KERALA, PIN-682304. (*AMENDED)** _**THE CAUSE TITLE AMENDED IN ORDER TO SHOW THE CORRECT AND COMPLETE ADDRESS OF THE 3RD RESPONDENT AS:-“BAJAJ ALLIANZ GENARAL INSURANCE CO.LTD, REPRESENTED BY DIVISIONAL MANAGER, DIVISIONAL OFFICE, ANUGRAHA BUILDING, PAZHAVANGADI PO, THIRUVANANTHAPURAM, PIN-695 023” AS PER ORDER DATED 8-1-20 IN I.A.NO.2/19.**_ **BY ADVS. SRI.M.S.UNNIKRISHNAN SRI.RINU. S. ASWAN SMT.M.ARDRA KRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **HEARING ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.4751 of 2019 2 ## **C.S. SUDHA, J.** **------------------------------------------------------------M.A.C.A. No.4751 of 2019 ----------------------------------------------------------Dated this the 09[th] day of April 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act), has been filed by the claimant in O.P.(MV) No.1189/2016 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 10/05/2019. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the claimant/injured, on 12/06/2015 at 10:05 p.m. the claimant was riding scooter bearing registration no.KL-17/L 3913 through Kothamangalam- Muvattupuzha public road and when he reached near Mathirappilly Sub Station, he was knocked down by a car bearing registration no.KL-44/D 155 M.A.C.A. No.4751 of 2019 3 driven by the second respondent in a rash and negligent manner as a result of which he was thrown on to the road by which he sustained serious injuries and damage to his scooter. The first respondent is the owner of the offending car, the second respondent, the driver and the third respondent, the insurer, are jointly and severally liable to compensate the claimant. Hence the claimant claimed an amount of ₹1,00,000/- as compensation under various heads. 3. Respondents 1 and 2 remained _ex parte._ 4. The third respondent/insurer filed written statement admitting the existence of the policy but denied the liability. 5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A12 were marked on the side of the claimant. No documentary evidence was produced by the respondents. Ext.X1, the medical records of the claimant, Malankara Orthodox Syrian Church Medical College & Hospital, Kolenchery has also been marked. M.A.C.A. No.4751 of 2019 4 6. The Tribunal on a consideration of the documentary evidence and after hearing both sides found negligence on the part of the second respondent resulting in the accident and hence awarded an amount of ₹33,300/- with interest @ 7% per annum from the date of petition till realisation and proportionate costs from the third respondent. Aggrieved, the petitioner has come up in appeal. 7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 8. Heard both sides. 9. The learned counsel for the claimant/injured challenges the Award of the Tribunal under the following heads - **Notional Income** – According to the claimant, as a driver he was earning a monthly income of ₹20,000/-. But the Tribunal wrongly fixed his monthly income as ₹7,000/-, which is too low and against settled precedents. Reference was made to the dictum in **Manusha Sreekumar v. United India Insurance Co. Ltd.,** M.A.C.A. No.4751 of 2019 5 **AIR 2022 SC 5161** in support of this argument. _Per contra_ it was submitted by the learned counsel for the respondent insurer that the dictum of **Manusha Sreekumar** ( _Supra_ ) cannot be applied to the facts of the present case, as in the former case the claimant had produced documents to substantiate the claim. Neither oral nor documentary evidence has come on record in the case on hand to substantiate the claim, goes the argument. Reference was also made to the dictum in **Chandra v. Mukesh Kumar Yadav,** **(2022) 1 SCC 198** , wherein the monthly income of a heavy vehicle driver in the year 2016 was fixed at ₹8,000/-. 9.1. The case of the claimant that he was getting a monthly income of ₹20,000/- as driver of heavy vehicles was not accepted because he had not even produced his license before the Tribunal. The claimant has filed I.A.No.1/2024 praying that his driving license particulars from the year 2020 be accepted in evidence. It is true that the document ought to have been produced before the Tribunal. No reason(s) has been given as to what prevented the claimant from producing the document before the Tribunal. M.A.C.A. No.4751 of 2019 6 However, the Act being beneficial legislation, a liberal approach needs to be taken. Hence the application is allowed and the document is taken on record and marked as Annexure-A. Annexure-A shows that the claimant had license for driving heavy vehicles from the year 2002 onwards. The incident in this case took place in the year 2015. 9.2. In **Chandra** ( _Supra_ ) the Apex Court had fixed the monthly income of a heavy vehicle driver in the year 2016 at ₹8,000/ per month. **Manusha Sreekumar** ( _Supra_ ) was a case in which the claimant was a fish vendor cum driver with a valid driving license. The certificate issued by the Kerala Motor Transport Workers Welfare Fund Board certifying the deceased was a driver of light motor goods vehicles was proved. The Apex Court noticing the decision in **Chandra** ( _Supra_ ) held that in the absence of a salary certificate, the minimum wages notification along with some amount of guesswork that is not completely detached from reality should act as a yardstick in determining the income of the deceased. Schedule B Category III of the Kerala M.A.C.A. No.4751 of 2019 7 Fair Wages Act was taken note of as per which a driver has been classified as a skilled worker. This coupled with the notification that came into effect from 01/01/2015 amending Schedule A of the Kerala Fair Wages Act, prescribing minimum pay scale of the workers listed in Schedule B, it was found that a driver in Kerala during the year 2016 earned a minimum amount of ₹15,600/-per month. 9.3. Annexure-A shows that the claimant had a license for driving heavy passenger motor vehicles as well as heavy goods motor vehicles from the year 2002. Hence in the light of the dictum in **Manusha Sreekumar** ( _Supra_ ), the income of the claimant is fixed at ₹15,600/- per month. 10. **Loss of earnings** - It is submitted by the learned counsel for the claimant that all the injuries sustained by the latter were not taken into consideration for fixing loss of earnings. Though loss of earnings for four months was sought, loss of earnings for only one month was granted, which is also incorrect and wrong. On the other hand it is submitted by the learned counsel for the M.A.C.A. No.4751 of 2019 8 respondent/insurer that loss of earnings of one month granted is just compensation and that it does not require any sort of interference as the claimant would have recovered within a period of one or at best within two months. 10.1. Ext.A8 wound certificate shows that the following injuries were sustained- - “ _1. Sutured wound on the left parieto occipital scalp_ _2. Abrasion right cheek_ _3. Abrasion left shoulder”_ My attention was drawn to page no.8 of Ext.X1 which would show that in addition to the injuries referred to in Ext.A8 wound certificate, the claimant had also sustained another serious injury, that is, _“AC joint Grade III Subluxation left shoulder”._ Grade III acromioclavicular (AC) joint injuries, according to the learned counsel for the claimant, are dislocations of the AC joint and is often referred to as a ‘dislocated shoulder’. The treatment of Grade III AC joint injuries tends to be more complex and varies on a case-to-case basis depending on the patients and severity of the dislocation. Therefore, the argument is that loss of earnings for M.A.C.A. No.4751 of 2019 9 four months ought to have been granted. 10.2. No medical evidence has been brought in to show the severity of the dislocation sustained. However, in the light of the dislocation to the shoulder sustained, I find that loss of earnings for a period of two months would be reasonable, that is, ₹31,200/(₹15,600/- x 2 M*). 11. **Transport** – An amount of ₹2,500/- claimed has been granted. Hence no interference is called for. 12. **Extra nourishment** - An amount of ₹5,000/- was claimed. The Tribunal awarded an amount of ₹2,000/-, which in the circumstances of the case is reasonable. 13. **Damages to scooter** - It was strenuously argued by the learned counsel for the claimant that though Exts.A9 and A10 documents were produced by the claimant to substantiate his claim, the Tribunal wrongly rejected the same and declined to award any amount. It was also pointed out referring to Section 64 UM of the Insurance Act, 1968 that only claims of ₹20,000/- and above are required to be surveyed by a licensed surveyor. For M.A.C.A. No.4751 of 2019 10 claims less than ₹20,000/-, a survey by a licensed surveyor is not mandatory. The claim was only for ₹20,000/- and therefore, in such circumstances the Tribunal ought to have accepted Exts.A9 and A10 and awarded compensation, goes the argument. 13.1. Ext.A9 dated 10/08/2015 is a copy of motor inspection/survey report and Ext.A10 which is undated, is stated to be _“advanced stamped receipt cum bill”_ . When these documents were attempted to be brought in evidence, the same was objected to by the respondent and hence they were marked subject to the objection raised. Despite the objection raised, Exts. A9 and A10 were not proved by examining the persons who issued the same. 13.2. It is well settled that mere production and marking of a document as exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence, that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are M.A.C.A. No.4751 of 2019 11 admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. (See **Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003 KHC 1695: 2003 (8) SCC 745; Sait Tarajee Khimchand v. Yelamarti Satyam, 1972 KHC 723: 1972 (4) SCC 562; Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003 KHC 1695: 2003 (8) SCC 745; Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), 2023 KHC 6268 :2023 KHC OnLine 6268: 2023 LiveLaw (SC) 211** ). 13.3. Further, as held by the Apex court in **Harendra Rai v. State of Bihar, 2023 KHC 6782: 2023 INSC 738,** at the stage of evidence, when any document / paper is formally produced for being treated as a piece of evidence, the Court looks at two basic aspects. Firstly, the existence of the document on the Court's record and, secondly, the proof of its execution or its contents being sufficiently deposed to by a witness having requisite knowledge thereof, whereafter, the document in question is marked as exhibit. At the stage of exhibiting any document as a M.A.C.A. No.4751 of 2019 12 piece of evidence, the truth of what is stated in the document is not considered. It is left open to final evaluation at the trial after cross - examination, and the entire testimony of the witness about the existence and contents of the document is weighed in conjunction with various other factors emerging during a trial. At the final evaluation stage, the trial court concludes whether the document speaks the truth and decides what weight to give it for final decision. In other words, its evidentiary value is analyzed by the Courts at the time of final judgment. In this view of the matter, the marking of a piece of evidence as 'exhibit' at the stage of evidence in a trial proceeding is only for the purpose of identification of evidence adduced in the trial and for the convenience of the Court and other stakeholders to get a clear picture of what is being produced as evidence in a trial proceeding. 13.4. That being the position, the Tribunal was right in not relying on Exts.A9 and A10 and therefore I find no reasons to interfere with the said finding. M.A.C.A. No.4751 of 2019 13 14. **Bystander expenses** - Bystander expenses of ₹600/has been granted considering the fact that the claimant had been admitted in the hospital for two days. The bystander expenses of ₹300/- per day in the year 2015 is quite reasonable and hence the amount awarded does not call for any interference. 15. **Pain and suffering** - An amount of ₹50,000/- was sought. The Tribunal granted an amount of ₹10,000/-. It was pointed out by the learned counsel for the claimant that in the light of the injuries noted in Ext.A8 and Ext.X1, the compensation awarded is meager. Taking into account the injuries noted in Ext. A8 wound certificate and the injury referred to in page no.8 of Ext.X1, I find that an amount of ₹20,000/- towards pain and suffering would be reasonable compensation. 16. **Loss of amenities** – An amount of ₹50,000/- was claimed. The Tribunal awarded an amount of ₹5,000/- although no disability certificate had been produced or proved. In such circumstances, an amount of ₹5,000/- granted by the Tribunal in is found to be just and adequate. M.A.C.A. No.4751 of 2019 14 ## 17. The impugned Award is partly modified thus - |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded by<br>Tribunal|Modified<br>in<br>appeal| |---|---|---|---|---| |1.|Loss of earnings<br>for 4 months|₹80,000/-|₹7,000/-|₹31,200/-<br>(₹15,600/- x 2M)| |2.|Partial loss of<br>earnings|₹10,000/-|0|-<br>(No<br>modification)| |3.|Transport to<br>hospital|₹2,500/-|₹2,500/-|₹2,500/-<br>(No<br>modification)| |4.|Extra Nourishment|₹5,000/-|₹2,000/-|₹2,000/-<br>(No<br>modification)| |5.|Damage to<br>clothings|₹2,500/-|₹1,000/-|₹1,000/-<br>(No<br>modification)| |6.|Damages to<br>scooter|₹20,000/-|0|-<br>(No<br>modification)| |7.|Surveyor's fee|₹3,000/-|0|-<br>(No<br>modification)| |8.|Medical expenses|₹30,000/-|₹5,159/-|₹5,159/-<br>(No<br>modification)| |9.|Attendant expenses|₹5,000/-|₹600/-|₹600/-<br>(No<br>modification)| |10.|Pain and sufferings|₹50,000/-|₹10,000/-|₹20,000/-| |11.|For continuing and<br>permanent<br>disability|₹50,000/-|0|-<br>(No<br>modification)| |12|Loss of earning|₹40,000/-|0|-| M.A.C.A. No.4751 of 2019 15 ||power|||(No<br>modification)| |---|---|---|---|---| |13.|Loss of amenities<br>and enjoyment in<br>life|₹50,000/-|₹5,000/-|₹5,000/-<br>(No<br>modification)| ||Total claim<br>Claim is limited to|₹3,48,000/-<br>₹1,00,000/-|₹33,259/-|₹67,459/-| *M-Month In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **₹34,200/-** (total compensation ₹67,459, that is, ₹33,259/- granted by the Tribunal + ₹ 34,200/- granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the claimant/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **SD/C.S. SUDHA JUDGE** ak