Elsamma v. National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** **MACA.No.2589 OF 2019** **AGAINST THE AWARD IN OPMV 15/2016 DATED 01-09-2018 OF ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/PETITIONER:** **ELSAMMA, W/O JOSEPH AGED 57 YEARS W/O JOSEPH, NARIPPARAYIL HOUSE, EZHALLOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK.** **BY ADV. SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT/3RD RESPONDENT:** **NATIONAL INSURANCE CO.LTD REPRESENTED BY ITS BRANCH MANAGER, MUVATTUPUZHA THROUGH DIVISIONAL OFFICER, THODUPUZHA-685 585** **R1 BY ADV. SRI.T.V.AJAYAKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2589 OF 2019** ..2.. ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.15 of 2016 on the file of the Motor Accidents Claims Tribunal, Thodupuzha, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 16.05.2015, while she was travelling as a pillion rider on a motorcycle bearing registration No.No.KL-06/B-678. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-17/J-5892, owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,50,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set _ex parte_ . The 3[rd] respondent insurer ## **MACA.No.2589 OF 2019** **==> picture [17 x 9] intentionally omitted <==** filed filed written statement admitting the accident; however, denying the negligence alleged against the 2[nd] respondent rider. It was pointed out that the vehicle involved in the accident was having valid insurance, at the time of accident. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A9 series were marked on the side of the appellant/claimant. 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 riding of the offending motorcycle by the 2[nd] respondent rider. 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.1,75,310/together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost and the ## **MACA.No.2589 OF 2019** **==> picture [18 x 9] intentionally omitted <==** insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. 7. 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. 8. 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 ## **MACA.No.2589 OF 2019** **==> picture [17 x 8] intentionally omitted <==** 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 be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. ## **MACA.No.2589 OF 2019** ..6.. ## 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No<br>.|Head of claim|Amount<br>claimed<br>(in Rupees)|Amount<br>alwarded<br>(in Rupees)|Basis-vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning|90,000/-|54,000/-|9,000x6 months| |2|Medical and<br>miscellaneous<br>expenses|90,000/-|75,310/-|Acceptable bill for<br>Rs.75311/-<br>produced| |3|Bystander expense|15,000/-|2,500/-|Rs.250x10days<br>one person| |4|Transportation<br>expenses|10,000/-|10,000/-|| |5|Extra nourishment|10,000/-|2,500/-|| |6|Damage to clothing<br>etc|5,000/-|1,000/-|| |7|Pain and suffering|1,00,000/-|30,000/-|| ||Total|claim<br>Limited to<br>**3,50,000/-**|Rs.1,75,310/-|Rs.1,75,310/-<br>along with<br>interest at the<br>reate of 9% p.a.<br>from 11.01.2016| 11. The accident occurred on 16.05.2015. At the time of accident, the appellant was aged 40 years. The appellant claimed a monthly income of Rs.15,000/- as fish cleaner. In order to prove the monthly income, the appellant produced Ext.A8 certificate issued by the owner of the shop. But the said document was not proved by examining the person ## **MACA.No.2589 OF 2019** ..7.. concerned. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.9,000/-, 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 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 ## **MACA.No.2589 OF 2019** **==> picture [18 x 8] intentionally omitted <==** 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 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 ## **MACA.No.2589 OF 2019** **==> picture [18 x 9] intentionally omitted <==** vegetable vendor is reasonably capable of earning 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 2015, 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.10,000/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A4 is the treatment certificate issued from Holi Family Hospital, Muthalakkodam. Ext. A5 is the discharge summary issued from MOSC Medical College Hospital, Kolenchery. Ext.A6 is the discharge summary issued from Holi Family Hospital, Muthalakkodam. Ext. A7 is the CT scan report of the brain issued from Life Scan. As per medical records, she was admitted in Holi Family Hosptial on 16.05.2015 with lacerated wound of 2x1 cm on right parietal region. Ext.A5 discharge summary would show that she was ## **MACA.No.2589 OF 2019** **==> picture [22 x 7] intentionally omitted <==** admitted at MOSC Medical College on 16.07.2015. She had weakness on the left side and swaying while walking. She was discharged from there on 23.07.2015. The diagnosis was right FTP chronic SDH with midline shift. She had an evacuation and managed conservatively. Ext.A6 is the discharge summary issued from Holi Family Hospital, Muthalakkodam which shows very same injuiry as in Ext. A4. Ext. A7 C.T. Brain showed acute subacute subdural hemorrhage along right fronto parietal convexity causing mass effect and midline shift. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.54,000/-, at the rate of Rs.9,000/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant 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 appellant is re-fixed notionally as Rs.10,000/-, the compensation under the head loss of earning is re-fixed as Rs.60,000/- (10,000 x 6), resulting an additional **MACA.No.2589 OF 2019** ..11.. compensation of **Rs.6,000/-** (60,000 - 54,000). 17. 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.10,000/-. The place of accident is at Kalloorkkadu. From there she was taken to Holi Family Hospital, Muthalakkodam, which is 25 kms away. Her house is at Kumaramangalam, which is nearly 10 kms away. Her second admission was at MOSC Medical College Hospital, Kolenchery and which is nearly 25km away from her house. There were seven reviews after the discharge on 23.07.2015 as per Ext.A9 series bills. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards bystander expenses the Tribunal awarded a sum of Rs. 2,500/- (250 x 10). Towards extra nourishment, ## **MACA.No.2589 OF 2019** ..12.. the Tribunal awarded a further sum of Rs.2,500/- (250 x 10). The accident is of the year 2015 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 under the head bystander expenses is re-fixed as Rs.3,000/-(300 x 10), resulting an additional compensation of **Rs.500/-** (3,000 – 2,500). The compensation awarded by the Tribunal under the head extra nourishment represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2014, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.75,310/-, covered by Ext.A9 series of medical bills. ## **MACA.No.2589 OF 2019** **==> picture [22 x 9] intentionally omitted <==** 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. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. 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 cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 22. The Tribunal awarded no amount towards loss of amenities. Considering the nature of injuries sustained, as borne out from medical records, this Court deem it appropriate to grant a sum of Rs. **5,000/-** as compensation under this head. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.12,000/-** (Rupees twelve ## **MACA.No.2589 OF 2019** **==> picture [22 x 9] intentionally omitted <==** thousand only) [6,000 + 500 + 500 +5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The respondent 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 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN, JUDGE** kkj