C.V. Sarojam and others v. The Director, Department of Tourism, Trivandrum Park View, Trivandrum; Bharathan C. S/o. Aruthan Chalil; The Kerala State Rep. by District Collector, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **MACA.No.871 OF 2008** **AGAINST THE AWARD IN OPMV 1643/1998 DATED 31-01-2007 OF IST ADDITIONAL M.A.C.T, KOZHIKODE** ## **APPELLANTS:** **1 C.V.SAROJAM, W/O.UNNIKRISHNAN AGED 54 YEARS, RESIDING AT MADHAVAM,, HOUSE NO.24/1861, MANKAVU, KOZHIKODE. 2 C.V.MANJU DO.LATE UNNIKRISHNAN AGED 33 YEARS, RESIDING AT MADHAVAM,, HOUSE NO.24/1861, MANKAVU, KOZHIKODE.** - **3 C.V.RADHIKA DO.LATE UNNIKRISHNAN AGED 29 YEARS, RESIDING AT MADHAVAM,, HOUSE NO.24/1861, MANKAVU, KOZHIKODE.** - **4 C.V.RAVIKUMAR SO.LATE UNNIKRISHNAN AGED 25 YEARS, RESIDING AT MADHAVAM,, HOUSE NO.24/1861, MANKAVU, KOZHIKODE.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENTS:** - **1 THE DIRECTOR DEPT.OF TOURISM,TRIVANDRUM PARK VIEW, TRIVANDRUM., (OWNER OF THE CAR NO.KL 01-L388).** - **2 BHARATHAN.C. SO.ARUTHAN CHALIL HOUSE, THIRUTHIYAD, BALUSSERY, KOZHIKODE., (DRIVER OF THE CAR NO.KL 01-L-388)** - **3 THE KERALA STATE REP. BY DISTRICT COLLECTOR, KOZHIKODE, (AMENDMENT IA NO.2595/05).** ## **R1 BY SMT S.L.SYLAJA-GOVERNMENT PLEADER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.871 of 2008 2 ## **JUDGMENT** The appellants are the claimants in O.P.(MV)No. 1643 of 1998 on the file of the Motor Accidents Claims Tribunal, Kozhikkode, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained and the subsequent death of one Unnikrishnan, husband of the 1[st] appellant, and father of appellants 2 to 4, in a motor accident which occurred on 09.05.1998 while he was walking along the side of a public road. At the place of accident he was knocked down by a car bearing registration No.KL-01/L-338, owned by the 1[st] respondent and driven by the 2[nd] respondent. In the accident he sustained injuries, who had undergone inpatient treatment for a period of 5 days and discharged on 13.05.1998. Later, he died on 18.06.1998. Alleging that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.2,00,000/- under various heads. The 3[rd] respondent is the State of Kerala. MACA No.871 of 2008 3 2. Before the Tribunal, the 1[st] respondent filed written statement admitting the ownership of the car involved in the accident; however, denying negligence alleged against the 2[nd] respondent driver. The 1[st] respondent contended that the accident occurred due to the negligence on the part of the injured. 3. Before the Tribunal, Exts.A1 to A4 were marked on the side of the claimants. 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 car by the 2[nd] respondent driver. The Tribunal found that there is no evidence on the side of the claimants to prove that the death of Unnikrishnan was on account of the injuries sustained in the accident. At the time of hearing, the learned counsel for the claimants conceded that the claim petition can only be treated as an injury case. Since the car was not covered by a valid insurance policy, respondents 1 to 3 were held jointly and severally liable to pay the amount of compensation to the claimants. MACA No.871 of 2008 4 Under various heads, the Tribunal awarded a total compensation of Rs.19,300/- together with interest at the rate 6% per annum from the date of petition, i.e., 08.10.1998, with a cost of Rs.350/- and the 1[st] respondent owner is directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/claimants are before this Court in this appeal. 6. Heard the learned counsel for the appellants/ claimants and also the learned Government Pleader for respondents 1 and 3. 7. One of the contentions raised in this appeal is that Unnikrishnan died on account of the injuries sustained in the accident and therefore, the Tribunal ought to have treated the claim petition as one filed claiming compensation on account of his death. 8. The accident occurred on 09.05.1998. The Tribunal noticed that the deceased had undergone inpatient treatment for a period of 5 days at the Medical College Hospital, Kozhikode and he was discharged on 13.05.1998. The document marked as Ext.A2 is a MACA No.871 of 2008 5 reference card issued R.M. Hospital, Beypore, where he had undergone 12 days inpatient treatment. As evident from Ext.A2, in the accident, the deceased sustained fracture of 6[th] and 7[th] ribs on the right side. No other injuries were noted in Ext.A2. There was no evidence to show that the movement of rib bones out of alignment caused any life-threatening complications like punctures or damages to the internal organs or critical blood vessels. He died on 18.06.1998, as evident from Ext.A3 death certificate. No materials were placed before the Tribunal to prove that the death of the deceased was on account of the injuries sustained in the accident. The learned counsel for the claimants conceded before the Tribunal that the claim petition can only be treated as an injury case. On a query made by this Court, the learned counsel for the appellants/claimants would submit that no materials were placed before the Tribunal or before this Court to prove that the death of the deceased was on account of the injuries sustained in the accident. In the absence of any reliable materials, the finding of the Tribunal that the claim petition can only be treated as an MACA No.871 of 2008 6 injury case, warrants no interference in this appeal. 9. Now the issue that remains to be considered in this appeal is as to whether the appellants are entitled for enhancement of the compensation awarded by the Tribunal under various heads. 10. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Apex Court laid down the principles governing determination of quantum of compensation in the case of death in a motor accident. The Apex Court held that, the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by following the well settled steps, namely, ascertaining the multiplicand MACA No.871 of 2008 7 (annual contribution to the family), the multiplier and calculation of loss of dependency by multiplying the multiplicand by such multiplier. 11. 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 nonviolation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the Tribunal is MACA No.871 of 2008 8 quite wide, yet it is obligatory on the part of the Tribunal to be guided by the expression, i.e., just compensation. 12. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No|Head of claim|Amount<br>awarded<br>(in Rs.)| |---|---|---| |1|Compensation for pain<br>and suffering|12,000/-| |2|Hospitalisation charges,<br>bystander expenses and<br>medical expenses|3,000/-| |3|Incidental<br>expenses<br>(including transportation<br>expenses and extra<br>nourishment)|2,000/-| |4|Damage to clothing|300/-| |5|Loss of earning|2,000/-| |Total Rs. 19,300/-||| 13. The accident occurred on 09.05.1998. At the time of accident, the deceased was aged 55 years. In the claim petition it was claimed that, at the time of accident, he was earning a monthly income of Rs.5,000 as an employee in Gwaliyor Rayons, Mavoor. No materials were placed before the Tribunal to prove the monthly income of the deceased. None of the appellants have chosen to mount the box. The Tribunal fixed the monthly income of MACA No.871 of 2008 9 the deceased as Rs.1,800/-, for the purpose of awarding compensation under various heads. 14. 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 MACA No.871 of 2008 10 some guess work, which may include the ground realities prevailing at the relevant point of time. 15. 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 Rs.6,500/- per month. 16. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 1998, and taking MACA No.871 of 2008 11 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 deceased notionally as Rs.2,000/-, for the purpose of assessing compensation under various heads. 17. The Tribunal awarded no compensation under the head loss of earnings. As evident from Ext.A2, in the accident, the deceased sustained fracture of 6[th] and 7[th] ribs on the right side. He had undergone inpatient treatment for a total period of 17 days. Later, he died on 18.06.1998. Considering the nature of injuries sustained and the treatment the deceased had undergone, loss of earning can be granted for a period of 2 months. Therefore, the appellants are granted **Rs.4,000/-** (2,000 x 2) towards loss of earning. 18. The Tribunal awarded Rs.12,000/- as compensation towards pain and suffering. Considering the nature of injuries sustained and the treatment the deceased had undergone, the compensation under the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs** . **3,000** /- MACA No.871 of 2008 12 (15,000 - 12,000). 19. Towards hospitalisation charges, bystander expenses and medical expenses the Tribunal awarded Rs.3,000/-. Towards incidental expenses (including transportation expenses and extra nourishment) the Tribunal awarded Rs.2,000/-. Towards damage to clothing the Tribunal awarded Rs.300/-. The accident is of the year 1998 and the deceased had undergone inpatient treatment for a period of 17 days. No medical bills were produced before the Tribunal to prove medical expenses. The appellants are granted a sum of Rs.2,500/- towards transportation expenses; Rs.2,550/- (150 x 17) towards bystander expenses; Rs.1,700/- (100 x 17) towards extra nourishment; and Rs.750/- towards damage to clothing and articles, resulting an additional compensation of **Rs.2,200** /- [(2,500 + 2,550 + 1,700 + 750) – (3,000 + 2,000 + 300)]. 20. The Tribunal awarded no compensation under the head permanent disability and also towards loss of amenities. 21. In **Raj Kumar v. Ajay Kumar [(2011) 1** MACA No.871 of 2008 13 **SCC 343]** the Apex Court held that, the provisions of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The Court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: MACA No.871 of 2008 14 Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: - (a) Loss of earning during the period of treatment; - (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. - Non pecuniary damages (General damages) - (iv) Damages for pain, suffering and trauma as a consequence of the injuries. - (v) Loss of amenities (and/or loss of prospects of marriage). - (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical MACA No.871 of 2008 15 expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 22. In the accident, the deceased sustained fracture of 6[th] and 7[th] ribs on the right side. There was no evidence to show that the movement of rib bones out of alignment caused any life-threatening complications like punctures or damages to internal organs or critical blood vessels. No materials could be placed before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability, since he died on 18.06.1998. In the absence of any such materials, the case of the deceased can only be treated as a routine personal injury case, in which no compensation can normally be granted under the heads permanent disability or loss of amenities. Considering the nature of injuries sustained, at the age of 55 years, and also the fact that no materials could be placed before the Tribunal to prove any permanent disability of the deceased, since he died on 18.06.1998, the appellants are granted a sum of **Rs.20,000/-** towards disability compensation and loss of amenities. MACA No.871 of 2008 16 23. In the result, the appellants/claimants will be entitled for payment of an additional compensation of **Rs.29,200/-** (Rupees twenty nine thousand two hundred only) [4,000 + 3,000 + 2,200 + 20,000] in this appeal, from respondents 1 to 3, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 368 days in filing this appeal, which was condoned by the order dated 06.02.2020, on condition that, in case enhanced compensation is granted, the appellants will not be entitled to interest for the said amount, for the period of delay. The additional compensation granted in this appeal shall be paid to the 1[st] appellant, the wife of the deceased. The 1[st] respondent owner 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 claimants towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the 1[st] appellant/1[st] claimant shall be made taking note of the MACA No.871 of 2008 17 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 1[st] appellant/ claimant 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 Government Pleader, 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** dlk