BOSE A.V. (through legal heirs) and Seena V.H., Adithyan Bose, Aromal Bose, Retnavally v. Anilkumar V.P. and Royal Sundaram Alliance Insurance Company Limited and Indus Motor Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941** ## **MACA.No.432 OF 2014** **AGAINST THE AWARD IN OPMV 2358/2009 DATED 22-09-2012 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS:** |*****|**1**|**BOSE A.V.,**| |---|---|---| |||**AGED 40 YEARS, S/O.VELAYUDHAN,**| |||**ANABLAYITHARA KIZHAKKETHUNDIYIL HOUSE,**| |||**VALAPIKADAVU ROAD,GANDHI SQUARE,**| |||**MARADU.P.O,POONITHURA VILLAGE,**| |||**KANAYANNOOR TALUK,ERNAKULAM DISTRICT.**| ||*****|**(DIED. LEGAL HEIRS IMPLEADED)**| |**ADDITIONAL APPELLANTS**<br>**:**||| |**** **|**2**|**SEENA V.H.,**| |||**AGED 18 YEARS, W/O LATE BOSE A.V.,**| |||**ANABLAYITHARA,**| |||**KIZHAKKETHUNDIYIL HOUSE,**| |||**VALAPPIKADAVU ROAD, GANDHI SQUARE,**| |||**POONITHURA, MARADU, POONITHURA VILLAGE,**| |||**KANAYANNUR TALUK, ERNAKULAM DIST.**| |**** **|**3**|**ADITHYAN BOSE,**| |||**AGED 5 YEARS,S/O.LATE BOSE A.V.,**| |||**MINOR REP BY HIS MOTHER SEENA V.H.,**| |||**W/O LATE BOSE,**| |||**ANABLAYITHARA, KIZHAKKETHUNDIYIL HOUSE,**| |||**VALAPPIKKADAVU ROAD, GANDHI SQUARE,**| |||**POONITHURA, MARADU, POONITHURA VILLAGE,**| |||**KANAYANNUR TALUK, ERNAKULAM DIST.**| |**** **|**4**|**AROMAL BOSE,**| |||**AGED 6 YEARS, S/O LATE BOSE A.V.,**| |||**MINOR REP BY HIS MOTHER SEENA V.H.,**| |||**W/O LATE BOSE,**| |||**ANABLAITHARA, KIZHAKKETHUNDIYIL HOUSE,**| |||**VALAPPIKADAVU ROAD, GANDHI SQUARE,**| |||**POONITHURA, MARADU, POONITHURA VILLAGE,**| |||**KANAYANNUR TALUK, ERNAKULAM DIST.**| **MACA.No.432 OF 2014** -2- **** 5 RETNAVALLY, AGED 19 YEARS, M/O LATE BOSE A.V., W/O VELAYUDHAN, ANABLAYITHARA KIZHAKKETHUNDIL HOUSE, VALAPPIKKADAVU ROAD, GANDHI SQUARE, POONITHURA, MARADU, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DIST.** **** ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED IN THE APPEAL BEING LEGAL HEIRS OF THE DECEASED ORIGINAL APPELLANT VIDE ORDER DATED 01.10.2019 IN I.A.NO.2 OF 2019 IN MACA NO.432 OF 2014.** **BY ADVS. SRI.MATHEWS K.PHILIP SMT.T.MANASY** ## **RESPONDENTS:** **1 ANILKUMAR V.P., S/O.PARAMESWARAN, VADAKETHARA HOUSE, VADAKETHARA ROAD,PETTA KARA, POONITHURA.P.O,POONITHURA VILLAGE, ERNAKULAM DISTRICT-682019. 2 ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, INDUS MOTOR COMPANY LIMITED, OPPOSITE COCHIN SHIPYARD, M.G.ROAD,KOCHI-682031.** ## **R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.432 OF 2014** -3- ## **JUDGMENT** The original appellant is the claimant in O.P.(MV) No.2358 of 2009 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 04.08.2009, while he was riding a bicyle. At the place of accident, the bicycle was hit by a car bearing registration No. KL-7/BD-7112, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the original appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,30,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex-parte. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the car; however, denying negligence alleged against the 1[st] respondent. The insurer has disputed the nature of injuries **MACA.No.432 OF 2014** -4- sustained by the appellant and also the compensation claimed. 3. Before the Tribunal, Exts.A1 to A12 were marked on the side of the original appellant/claimant. Respondents have not chosen to adduce any oral or documentary 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.34,476/-, 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 deposit the said amount. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the original appellant/claimant is before this Court in this appeal. 6. During the pendency of this appeal, the original appellant died and his legal heirs are impleaded as additional appellants 2 to 5. **MACA.No.432 OF 2014** -5- 7. Heard the learned counsel for the appellants/ claimants and also the learned Standing Counsel for the 2[nd] respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent was dispensed with. 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 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 **MACA.No.432 OF 2014** -6- 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 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; ||**Head**|**Amount**<br>**claimed**|**Amount**<br>**awarded**|**Details**| |---|---|---|---|---| |1|Loss of earnings|15000|4000|One month| |2|Transportation expenses|1000|1000|| |3|Damage to clothing|1000|500|| |4|Expenses for treatment|15000|11976|(bills amount)| |5|Bystanders expenses|4000|2000|(200 x 10 days)| **MACA.No.432 OF 2014** -7- |6|Shock, pain and sufferings|20000|10000|| |---|---|---|---|---| |7|Loss of amenities and<br>enjoyment in life|10000|5000|| ||Total||**34,476/-**|| 12. The accident occurred on 04.08.2009. At the time of accident, the appellant was aged 36 years. The original appellant claimed a monthly income of Rs.5,000/- as Mason. No materials were placed on record to prove his monthly income. He has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.4,000/-, 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 **MACA.No.432 OF 2014** -8- 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 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 **MACA.No.432 OF 2014** -9- 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 2009, 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.5,000/- claimed by the original appellant cannot be said to be on a higher side. In such circumstances, this Court deem it appropriate to re-fix his monthly income notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate. Ext.A4 is the certified copy of Scene mahazar; Ext.A5 is the copy of policy; Ext.A6 is the certificate of registration; Ext.A7 is the copy of policy; Ext.A8 is the copy of AMVI report; Ext.A9 is the discharge summary; Ext.A10 is the medical bills; and Exts.A11 and A12 are the CT scan reports. As per medical records, the appellant had sustained injuries of **MACA.No.432 OF 2014** -10- abrasion over right knee; contusion on chest; and fracture on left vertebra. The appellant was taken to hospital, where he had undergone inpatient treatment for the period from 04.08.2009 to 14.08.2009. Ext.A10 series of medical bills are for a sum of Rs.11,976/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.4,000/-, per month for a period of 1 month. Considering the nature of injuries sustained and the treatment the original appellant had undergone, as borne out from medical records, the period of 1 month fixed by the Tribunal for granting loss of earning is re-fixed as 3 months. Since the monthly income of the original appellant is re-fixed notionally as Rs.5,000/-, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (5,000 x 3), resulting an additional compensation of **Rs.11,000/-** (15,000 - 4,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 10 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from **MACA.No.432 OF 2014** -11- medical records, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 19. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2009, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.11,976/-, covered by Ext.A10 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. 21. Towards bystander expenses, the Tribunal awarded a sum of Rs.2,000/- (200 x 10). The accident is of the year 2009 and the appellant had undergone inpatient treatment for 10 days. 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 **MACA.No.432 OF 2014** -12- under this head represents just and reasonable compensation, which requires no enhancement in this appeal. Towards extra nourishment, no amount has been awarded by the Tribunal. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court deem it appropriate to grant a sum of **Rs.1,500/-** (150 x 10) under this head. 22. As compensation towards pain and sufferings, the Tribunal awarded a sum of Rs.10,000/-. 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.12,500/-, resulting an additional compensation of **Rs.2,500/-** (12,500 - 10,000). 23. Towards loss of amenities and enjoyment in life, the Tribunal awarded a sum of Rs.5,000/-. No materials were placed before the Tribunal to prove that the appellant is having any permanent disability on account of the injuries sustained in that accident. The Tribunal awarded a sum of Rs.5,000/- under the head loss of amenities and enjoyment in life, which cannot be said to be on the lower side in the absence of any **MACA.No.432 OF 2014** -13- documents to prove permanent disability. 24. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.16,000/-** (Rupees sixteen thousand only) [11,000 + 500 + 500 + 1,500 +2,500] 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 the amount to the appellant shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr