George and Alphonsa and Sruthy v United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** ## **MACA.No.1702 OF 2015** **AGAINST THE AWARD IN O.P.(MV) NO.550/2010 DATED 24-02-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANTS/PETITIONERS:** **1 GEORGE, S/O.KUNJANNAN, KOTTOLY HOUSE, MOTHIRAKANNI DESOM & P.O., PARIYARAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2 ALPHONSA W/O.GEORGE, -DO- -DO3 SRUTHY D/O.GEORGE, -DO- -DOBY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT/3RD RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LTD., GOVERNMENT HOSPITAL JUNCTION, ALUVA - 683 101. BY SRI.P.K.MANOJKUMAR,STANDING COUNSEL, UNITED INDIA INSURANCE COMPANY LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1702 of 2015 -2- ## **JUDGMENT** The appellants are additional claimants 2 to 4 in O.P. (MV) No.550 of 2010 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, a claim petition filed by one Sreejith, son of appellants 1 and 2 and brother of the 3[rd] appellant, 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 19.02.2010, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-42/A-2053, ridden by one Renjith P. Raj, owned by the 4[th] respondent before the Tribunal and insured with the respondent herein. At the place of accident, the rider of the motorcycle lost control. The motorcycle hit against an electric post and capsized. In the accident, both the rider and the pillion rider were thrown out and they sustained serious injuries. The rider succumbed to the injuries on 20.02.2010. Respondents 1 and 2 before the Tribunal are the parents of the deceased rider. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by its rider, claim petition was filed before the Tribunal claiming a total MACA No.1702 of 2015 -3- compensation of Rs.5,06,000/- under various heads, which was limited to Rs.3,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the parents of the deceased rider and also the owner of the motorcycle remained absent and they were set ex-parte. The respondent insurer filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying negligence alleged against its rider. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A9 were marked on the side of the claimants. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. During the pendency of the claim petition, the claimant died on 14.08.2013 and his legal heirs were impleaded as additional claimants 2 to 4. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident MACA No.1702 of 2015 -4- occurred due to the rash and negligent riding of the motorcycle by its rider. Since insurance coverage of the said vehicle was not in dispute, the respondent insurer was held liable to indemnify the insured. Though it was contended that the claimant died on account of the injuries sustained in the accident, no materials were placed before the Tribunal to substantiate the said contention. Under various heads, the Tribunal awarded a total compensation of Rs.2,26,830/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 21.06.2010 till realisation, with proportionate cost, and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/additional claimants 2 to 4, are before this Court in this appeal. 6. Heard the learned counsel for the appellants and also the learned Standing Counsel for the respondent insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellants are entitled for enhancement of the compensation awarded by the Tribunal MACA No.1702 of 2015 -5- 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 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 MACA No.1702 of 2015 -6- 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. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||Head of claim|Amount<br>claimed<br>(Rs.)|Amount<br>allowed<br>(Rs.)|Basis vital details in<br>a nutshell| |---|---|---|---|---| |1|Loss of earning|90,000|35,000|Rs.3500x10 months| |2|Transport to hospital|5,000|2,000|| |3|Damage to clothing|1,000|500|| |4|Extra nourishment|5,000|500|| |5|Medical expenses|1,00,000|86,730|| |6|Bystander's expenses|5,000|2,100|Rs.150 x 14 days| |7|Pain and suffering|50,000|50,000|| |8|Permanent disability|1,00,000|---|| ||Loss of amenities|50,000|50,000|| |10|Loss of earning power|1,00,000|---|| ||Total|5,06,000/-<br>Limited to<br>Rs.3,00,000)<br>**5,00,000/-**|2,26,830/-|Rs.2,26,830/- along<br>with interest @<br>7.5% p.a. from<br>21.06.2010<br>till<br>realisation| 11. The accident occurred on 19.02.2010. At the time of accident, the claimant was aged 21 years. He claimed a monthly income of Rs.7,500/- as Aluminium Fabricator. No MACA No.1702 of 2015 -7- materials were produced before the Tribunal to prove the monthly income of the claimant. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.3,000/-, 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 given case, if the claim made is so exorbitant MACA No.1702 of 2015 -8- 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 vegetable vendor is reasonably capable of earning 6,500/- per month. MACA No.1702 of 2015 -9- 14. 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, the monthly income of Rs.7,500/- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the original claimant, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A3 is the wound certificate; Ext.A4 is the discharge summary; and Ext.A5 is the discharge certificate. As per medical records, in the accident, the claimant sustained blunt injury to abdomen and liver laceration. He had undergone inpatient treatment at West Fort Hospital from 20.02.2010 to 06.03.2010. Splenactomy was done as there was active bleed from spleen. Liver laceration was controlled by suturing. After blood transfusion and intensive care monitoring, the claimant was discharged from the hospital at a stage when he was capable of taking soft diet. The claimant died on 14.08.2013, nearly 3½ years after the accident. Since splenactomy was done, MACA No.1702 of 2015 -10- without spleen the claimant was more prone to infections. The postmortem certificate and other medicals records were not placed before the Tribunal to prove that the claimant died on account of the injuries sustained in the accident. In the absence of any such materials, the Tribunal cannot be found fault with in not accepting the case of additional claimants 2 to 4 that the death of the claimant on 14.08.2013, nearly 3½ years after the accident, was on account of the injuries sustained in the accident. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.35,000/-, at the rate of Rs.3,500/- for a period of 10 months. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out from medical records, the period of 10 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.7,500/-, the compensation under the head loss of earning is re-fixed as Rs.75,000/- (7,500 x 10), resulting an additional compensation of **Rs.40,000/-** (75,000 - 35,000). 17. On account of the injuries sustained in the MACA No.1702 of 2015 -11- accident, the claimant had undergone inpatient treatment for 14 days. The accident is of the year 2010. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.4,000/-, resulting an additional compensation of **Rs.2,000/-** (4,000 - 2,000). 18. Towards bystander expenses, the Tribunal awarded a sum of Rs.2,100/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2010. The claimant had undergone inpatient treatment for 14 days. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.2,800/- (200 x 14), resulting an additional compensation of **Rs.700/-** (2,800 - 2,100). The claimant was discharged from the hospital at a stage when he was capable of taking soft diet. Considering the said fact, the compensation under the head extra nourishment is re-fixed as MACA No.1702 of 2015 -12- Rs.9,000/- (150 x 60), resulting an additional compensation of **Rs.8,500/-** (9,000 - 500). 19. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2010, 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.86,730/-, covered by Ext.A6 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. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. In the accident, the claimant sustained blunt injury to abdomen and liver laceration. Liver laceration was controlled by suturing. Splenactomy was done as there was active bleed from spleen. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out from medical MACA No.1702 of 2015 -13- records, 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. 22. Towards loss of amenities the Tribunal awarded a sum of Rs.50,000/-. On account of the injuries sustained in the accident, splenactomy was done as there was active bleed from spleen. Since splenactomy was done, without spleen the claimant was more prone to infections. Considering the said fact, the compensation under the head loss of amenities is refixed as Rs.60,000/-, resulting an additional compensation of **Rs.10,000/-** (60,000 – 50,000). 23. In the result, appellants 1 and 2/additional claimants 2 and 3 will be entitled for payment of an additional compensation of **Rs.61,700/-** (Rupees sixty one thousand and seven hundred only) [40,000 + 2,000 + 700 + 8,500 + 500 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation shall be apportioned among appellants 1 and 2/additional claimants 2 and 3 in the ratio 50:50. The respondent insurer shall satisfy the additional MACA No.1702 of 2015 -14- 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 appellants 1 and 2 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. Appellants 1 and 2 shall furnish their 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 certified copy of this judgment. This appeal is disposed of as above. No order as to costs. ## Sd/- **ANIL K. NARENDRAN JUDGE** bpr