C. M. Ahammedkutty Haji and others v. Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** ## **MACA.No.567 OF 2009** **AGAINST THE AWARD IN OPMV 1568/2000 DATED 01-07-2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT/S:** - **1 C.M. AHAMMEDKUTTY HAJI S/O.MOIDEEN KUTTY, AGED 66 YEARS,, BUSINESS, RESIDING AT SAFA MANZIL, KUDUKKIMOOTTA, P.O.EACHUR, KANNUR DISTRICT. ( DIED) SUPPLEMENTAL APPELLANTS 2 TO 7 IMPLEADED** - **2 ADDL. A2 - P.P. SUHARA, AGED 40 YEARS W/O. C.M. AHAMMEDKUTTY HAJI, RESIDING AT 'SAFA MANZIL', KUDUKKIMOTTA, P.O.EACHUR, KANNUR DISTRICT.** - **3 ADDL. A3 - P.P. NASEER, AGED 45 YEARS S/O.C.M. AHAMMEDKUTTY HAJI, RESIDING AT 'SAFA MANZIL', KUDUKKIMOTTA, P.O.EACHUR, KANNUR DISTRICT.** - **4 ADDL. A4 P.P. NOUSHAD, AGED 40 YEARS S/O. C.M. AHAMMEDKUTTY HAJI, RESIDING AT 'SAFA MANZIL', KUDUKKIMOTTA, P.O.EACHUR, KANNUR DISTIRCT.** - **5 ADDL. A5- P.P.SAMEERA, AGED 46 YEARS D/O. C.M.AHAMMEDKUTTY HAJI,RESIDING AT ' SAFA MANZIL'., KUDUKKIMOTTA, P.O.EACHUR, KANNUR DISTRICT.** - **6 ADDL. A6- P.P. RAMEESA, AGED 30 YEARS D/O. C.M. AHAMMEDKUTTY HAJI,RESIDING AT ' SAFA MANZIL', KUDUKKIMOTTA, P.O. EACHUR, KANNUR DISTRICT.** - **7 ADDL. A7 - P.P.SHABEENA, AGED 45 YEARS D/O. C.M. AHAMMEDKUTTY HAJI, RESIDING AT ' SAFA MANZIL' KUDUKKIMOTTA, P.O. EACHUR, KANNUR DISTRICT.** **SUPPLEMENTAL APPELLANTS 2 TO 7 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED APPELLANT AS PER ORDER DATED** MACA No.567 of 2009 2 ## **06/02/2020 IN I.A. 1/2020 IN THE MACA.** ## **BY ADVS. SRI.V.RAMKUMAR NAMBIAR SRI.C.X.ANTONY BENEDICT** ## **RESPONDENT/S:** |**1**|**C.MANOHANRAN ,**| |---|---| ||**S/O. KUMARAN, SADAM, P.O. PALLIKKUNNU, KANNUR**| ||**( DELETED)**| |**2**|**M.P.SHAMSUDHIN SO.MAMMY**| ||**MADATHILVALAPPIL HOUSE,, KANHIRARODE AMSOM,**| ||**DESOM,, P.O.KANHIRARODE.**| ||**( DELETED)**| |**3**|**ORIENTAL INSURANCE COMPANY LTD.**| ||**KANNUR.**| ||**RESPONDENTS NO 1 AND 2 ARE DELETED FROM THE PARTY**| ||**ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER**| ||**DATED 13/04/2012 IN I.A. 883/2012 IN MACA**| ||**567/2009.**| ## **R1 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.567 of 2009 3 ## **JUDGMENT** The appellants 2 to 7 are the legal heirs of the deceased original appellant, who was the claimant in O.P(MV)No.1568 of 2000 on the file of the Motor Accidents Claims Tribunal, Thalassery, 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 27.06.2000, while he was travelling in a maruti car bearing registration No.KL-13/B3278. At the place of accident, the maruti car was hit by another car bearing registration No.KL-10/C-6495 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the claimant and others sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car bearing registration No. KL-10/C-6495 by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads, which includes a sum of Rs.34,975/- towards the damage caused to the maruti car. 2. Before the Tribunal respondents 1 and 2 did not file MACA No.567 of 2009 4 written statement. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car bearing registration No. KL-10/C-6495, however, denying the negligence alleged against the 2[nd] respondent driver. The insurer contended that the accident occurred due to the rash and negligent driving of the maruti car by its driver. The insurer contended further that the compensation claimed is highly excessive. 3. Before the Tribunal, the claim petition was tried along with connected matters. On the side of the claimants Exts.A1 to A10 were marked. The claimant in O.P(MV)No.1568 of 2000 was examined as PW1. 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 car bearing registration No.KL10/C-6495 by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.41,800/-, for the injuries sustained by the claimant, together with interest at the rate of 7% per annum from the date of petition, i.e., 22.11.2000 till MACA No.567 of 2009 5 realisation, with proportionate cost, and the insurer was directed to satisfy the award. The claim made towards the damage caused to the maruti car was disallowed. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads and disallowing the compensation claimed towards the damage caused to the maruti car, the claimant filed this appeal before this Court. During the pendency of this appeal, the original appellant died and legal heirs are impleaded as additional appellants 2 to 7. 6. Heard the learned counsel for additional appellants 2 to 7 and also the learned Standing Counsel for the 2[nd] respondent insurer. 7. The issues that arise for consideration in this appeal are as to whether additional appellants 2 to 7 are entitled for enhancement of the compensation awarded by the Tribunal under various heads; and whether the Tribunal was justified in disallowing the compensation claimed towards the damage caused to the maruti car. 8. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of MACA No.567 of 2009 6 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 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 MACA No.567 of 2009 7 be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||Head of claim||Amount<br>allowed in Rs.|| |---|---|---|---|---| |1|Loss of earning||6,000/-|| |2|Transportation expense including bills||4,000/-|| |3|Medical expenses including bills||17,500/-|| |4|Bystanders expense||2,300|| |5|Extra Nourishment||2,000/-|| |6|Pain and sufferings||10,000/-|| ||Total claim<br>Limited to||41,800/-|| 11. The accident occurred on 27.06.2000. At the time of accident, the claimant was aged 56 years. He claimed a monthly income of Rs.5,000/- from copra business. The claimant was examined as PW1. No materials were produced before the Tribunal to prove his monthly income. The Tribunal fixed the monthly income notionally as Rs.2,000/-, for the purpose of assessing compensation under various heads. ## 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 MACA No.567 of 2009 8 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. 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 MACA No.567 of 2009 9 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 Rs.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 2000, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the claimant notionally as Rs.3,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A5 is the accident register cum wound certificate. As per medical records, in the accident, the claimant sustained contusion front of chest left side 5x4cm. X-Ray showed fracture to 7[th] rib left side. He also sustained lacerated wound 2x0.5x0.5cm on upper lip left side; lacerated wound MACA No.567 of 2009 10 0.5x0.5cm just below chin. He had undergone inpatient treatment for a period of 17 days. Ext.A10 series of medical bills are for a sum of Rs.17,500/-. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.1,000/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the claimant 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 claimant is re-fixed notionally as Rs.2,750/-, the compensation under the head loss of earning is re-fixed as Rs.21,000/- (3,500 x 6), resulting an additional compensation of **Rs.15,000/-** (21,000 - 6,000). 17. On account of the injuries sustained in the accident, the claimant had undergone inpatient treatment for 17 days. The accident is of the year 2000. Towards transportation to hospital, the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained and the treatment the claimant 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. MACA No.567 of 2009 11 18. Towards bystander expenses the Tribunal awarded a sum of Rs. 2,300./-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2000 and the claimant had undergone inpatient treatment for 17 days. Considering the nature of injuries sustained and the treatment the claimant 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. 19. Towards medical expenses, the Tribunal awarded a sum of Rs.17,500/-, 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. 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the claimant had undergone, the compensation awarded by the Tribunal under this head is re-fixed as Rs. 20,000/-, resulting an additional compensation of **Rs.10,000/-** (20,000 - 10,000). 21. The document marked as Ext.A4 is the survey report MACA No.567 of 2009 12 prepared by an authorised surveyor, as per which the damage sustained to the maruti car owned by the original appellant is assessed as Rs.34,975/-. The Tribunal did not award any compensation under this head, on the ground that Ext.A4 survey report was not proved by examining the surveyor concerned and there is no acceptable oral or documentary evidence to prove that the claimant had repaired the car by spending the amount mentioned in the survey report. 22. A perusal of Ext.A4 survey report would show that the claimant had produced computer printouts of the bills issued from M/s.Indus Motors, Calicut, with respect to the repair works undertaken on the maruti car. The said bills includes, the invoice for purchase of spare parts as well as invoice for labour charges. Some of those invoice bears the seal 'cash received'. Considering the market value of the said vehicle, at the time of accident, the Tribunal went wrong in discarding Ext.A4 survey report and disallowing Rs.34,975/- claimed as compensation towards the damage caused to the maruti car. Therefore, the additional 2[nd] appellant, the wife of the deceased original appellant/claimant is granted a sum of **Rs.34,975/-** as compensation towards the MACA No.567 of 2009 13 damage caused to the maruti car. 23. In the result, the additional 2[nd] appellant, the wife of the deceased original appellant/claimant will be entitled for an additional compensation of **Rs.59,975/-** (Rupees fifty nine thousand nine hundred and seventy five only) [15,000 + 10,000 + 34,975] in this appeal which will carry interest at the rate of **7%** per annum from the date of petition till realisation, excluding the period of delay of 1197 days in filing this appeal, which was condoned by the order dated 07.11.2017 in C.M.Appl.No.596 of 2009, subject to the condition that, in case any enhancement of the compensation is granted, the said amount will not carry interest for the said period of delay. 24. This appeal was earlier disposed of by the judgment of a Division Bench of this Court dated dated 05.12.2017, granting an additional compensation of Rs.59,975/ **-** together with interest at the rate of 7% per annum from the date of petition till realisation, excluding the period of delay of 1197 days, without noticing the fact that the original appellant/claimant died on 09.08.2011. The said judgment was recalled suo motu by the order of the Division Bench dated 29.01.2020 and Registry was directed to list I.A.Nos.1 to 3 of MACA No.567 of 2009 14 2020 seeking an order to implead the legal heirs of the deceased original appellant as additional appellants 2 to 7, after setting aside abatement and also the delay of 2945 days in filing the application to set aside abatement. Those interlocutory applications have already been allowed by the order dated 06.02.2020. 25. The learned Counsel for additional appellants 2 to 7 would submit that, based on the earlier judgment of the Division Bench dated 05.12.2017, the 3[rd] respondent insurer had already deposited Rs.59,975/ **-** together with interest at the rate of 7% per annum from the date of petition till date of depot, excluding the period of delay of 1197 days, before the Tribunal and the said amount is kept in a fixed deposit. Therefore, the Tribunal may be directed to to disburse the said amount to additional the 2[nd] appellant, who is the wife of the original appellant/claimant. 26. In case Rs.59,975/ **-** together with interest at the rate of 7% per annum from the date of petition, deposited before the Tribunal by the 3[rd] respondent insurer, based on the earlier judgment of the Division Bench dated 05.12.2017, is lying in fixed deposit, as submitted by the learned counsel for additional appellants 2 to 7, the Tribunal shall disburse the said amount to MACA No.567 of 2009 15 additional 2[nd] appellant, within one month from the date of production of a certified copy of this judgment. In case the said amount deposited by the 3[rd] respondent has already been returned to the insurer, the insurer shall satisfy an amount equivalent to the deposit made before the Tribunal, based on the earlier judgment of the Division Bench dated 05.12.2017, within two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the claimant towards Balance Court Fee and Legal Benefit Fund. In case of default, the said amount will carry interest at the rate of 8% per annum the date of this judgment till realisation. The disbursement of additional compensation to additional 2[nd] appellant shall be made 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. Additional 2[nd] appellant shall provide her 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 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. MACA No.567 of 2009 16 This appeal is disposed of as above. No order as to costs. Sd/- ## **ANIL K.NARENDRAN** **JUDGE** hmh