Deyesh R.D alias Unni v. Reliance General Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941** **MACA.No.173 OF 2017(F)** **AGAINST THE AWARD IN OP(MV)No.1259/2010 OF ADDITIONAL MOTOR ACCIDENTs CLAIMS TRIBUNAL, ALAPPUZHA.** ## **APPELLANT/PETITIONER:** **DEYESH R.D ALIAS UNNI AGED 37 YEARS, S/O.DAYANANDHAN, RAJAMMALAYAM HOUSE, PATHIRAPPALLY P.O, MARARIKULAM SOUTH PANCHAYATH, WARD-7, ALAPPUZHA DISTRICT, KERALA STATE.** **BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENTS/RESPONDENTS:** ***1 ALI M.A S/O.AHAMMED, 1/442, MATHRAKKATTU HOUSE, KUNNATHUNADU PANCHAYATH WARD-14,PERUMBAVOOR P.O. -682 303, ERNAKULAM DISTRICT. (DELETED)** ***(THE 1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 22/11/19 IN IA 1/19 IN MACA 173/2017)** M.A.C.A. No.173/17 -:2:- **2 RELIANCE GENERAL INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE I & II FLOOR, VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHARA, COCHIN -20.** **R2 BY ADV. SRI.R.AJITH KUMAR, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.173/17 -:3:- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1259 of 2010 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha, 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 06.06.2010, while he was riding a motorcycle. At the place of accident, the motorcycle was hit by a Innova car bearing registration No.KL-40/C-3999, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the Innova car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.11,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner cum driver did not file any written statement. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and M.A.C.A. No.173/17 -:4:- negligent riding of the motorcycle by the appellant. 4. Before the Tribunal, Exts.A1 to A13 series were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 5. 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 Innova car 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.1,66,795/-, together with interest at the rate of 9% per annum from the date of petition i.e., 30.11.2010 till realisation, with proportionate cost, and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 2[nd] respondent/insurer. M.A.C.A. No.173/17 -:5:- 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 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. 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 M.A.C.A. No.173/17 -:6:- 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; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded<br>(in rupees)|Details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earnings|64,800/-|13,500/-|For 3 months @<br>Rs.4,500/- p.m.| |2|Medical<br>and<br>miscellaneous<br>expenses|3,00,000/-|1,14,795/-|As per Ext.A13<br>series<br>of<br>medical bills| |3|Future treatment|2,00,000/-||No evidence| |4|Bystander's<br>expenses||1,000/-|For <br>days @<br>Rs.100/-<br>per<br>day| |5|Transportation<br>charges||1,000/-|| |6|Extra nourishment||1,000/-|Considering the<br>injuries<br>and<br>treatment| |7|Damage to clothing<br>and articles|20,000/-|500/-|| |8|Pain and suffering|30,000/-|20,000/-|Considering the<br>injuries and pain| |9|Mental<br>agony<br>Disfiguration|5,000/-|5,000/-|| M.A.C.A. No.173/17 -:7:- |11|Disability income<br>Loss of amenities<br>and convenience|3,00,000/-<br>60,000/-|10,000/-|No evidence| |---|---|---|---|---| |12|Loss of earning<br>power heads|2,00,000/-||| ||Total (Limited to<br>Rs.11,00,000/-)||1,66,795/-|| accident, the appellant was aged 31 years. The appellant claimed a monthly income of Rs.10,800/- as Manager and Weaver of Coir Mats & Mattings. No materials were produced before the Tribunal to prove monthly income of the appellant. 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.4,500/-, 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 M.A.C.A. No.173/17 -:8:- 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. 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 M.A.C.A. No.173/17 -:9:- 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. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2010, and taking 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 appellant notionally as Rs.7,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate and Ext.A6 is the discharge summary. As borne out from the medical records, in the accident the appellant sustained serious head injury. He had undergone inpatient treatment for a period of six days. Immediately after the accident, he was admitted in General Hospital, Alappuzha from where he was referred to Lakeshore Hospital, Ernakulam. CT Scan of the head revealed a large EDH (extra dural hematoma) M.A.C.A. No.173/17 -:10:- left temporal with mass effect and mid line shift. He sustained lacerated wound of 5x.05x6cm over the occipital area of scalp. He sustained serious head injury and had been in altered sensorium. He sustained left Zygomatic and left facial bone fractures. He had undergone surgery at Lakeshore Hospital. Ext.A13 series of medical bills are for a sum of Rs.1,14,795 /-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.13,500/-, at the rate of Rs.4,500/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.7,500/-, the compensation under the head loss of earning is re-fixed as Rs.30,000/- (7,500 x 4), resulting an additional compensation of **Rs.16,500/-** (30,000 – 13,500). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 6 days. The accident is of the year 2010. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the M.A.C.A. No.173/17 ## -:11:- 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 refixed as Rs.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500 – 1,000). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.1,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2010 and the appellant had undergone inpatient treatment for 6 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.1,200/- (200 x 6), resulting an additional compensation of **Rs.200/-** (1,200 – 1,000). The compensation under the head extra nourishment represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2010, the compensation under this head M.A.C.A. No.173/17 -:12:- is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.1,14,795/-, covered by Ext.A13 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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 the head pain and suffering is refixed as Rs.25,000/-, resulting an additional compensation of **Rs.5,000/-** (25,000 – 20,000) under this head. 23. Towards disfiguration, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under the head disfiguration is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.5,000/-** (10,000 – 5,000). M.A.C.A. No.173/17 -:13:- 24. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. No documents were produced before the Tribunal to prove any permanent disability of the appellant, on account of the injuries sustained in the accident. In the absence of any such materials, 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. 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.28,700/-** (Rupees Twenty eight thousand and seven hundred only) (16,500 + 1,500 + 200 + 500 + 5,000 + 5,000) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 315 days in filing this appeal, which was condoned by the order dated 22.11.2019, subject to the condition that, in case enhanced compensation is granted in this appeal, the appellant shall not be entitled for interest on the said amount for the period of delay. 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 M.A.C.A. No.173/17 -:14:- 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 additional compensation to the appellant/claimant shall be made taking note of the 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.D1-62475/2016 dated 07.11.2019 **.** The appellant shall provide his 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. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** vps