GIRIJA MOHAN v. K. KANAGASUBBU (deleted) and SUNIL KUMAR (deleted) and MS. UNITED INDIA INSURANCE COMPANY LTD.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941** ## **MACA.No.1785 OF 2013** **AGAINST THE AWARD IN OPMV 722/2002 DATED 17-02-2012 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANT/S:** **GIRIJA MOHAN,AGED 45 YEARS W/O.N.MOHANAN PILLAI, KIZHAKKEDATHU PUTHEN VEEDU, MANCHALLOOR, PATHANAPURAM, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.T.R.HARIKUMAR** ## **RESPONDENT/S:** - ***1 K. KANAGASUBBU (*DELETED) W/O.S.MOORTHY, 101/A-PALANIYANDI STREET, SALEM ROAD, NAMAKKAL, TAMIL NADU, PIN-673001.** - ***2 SUNIL KUMAR (*DELETED) S/O.ESAKK, PALAVILA KIZHAKKETHIL VEEDU, MAROOR, ENATHIMANGALAM, ADOOR, PATHANAMTHITTA, PIN-691524. (*RESPONDENTS 1 AND 2 ARE DELETED FROM PARTY ARAY AS PER ORDER DATED 01.10.2019 IN I.A NO.1/2019 IN MACA 1785/2013)** - **3 MS.UNITED INDIA INSURANCE COMPANY LTD. REPRESENTED BY ITS BRANCH MANAGER, PATHANAMTHITTA, PIN-691524.** **R3 BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1785 OF 2013** ..2.. ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.722 of 2002 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, which is 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 31.01.2002, while she was travelling as a passenger in an autorickshaw bearing Registration No.KL-2B/3163. 2. At the place of accident, a lorry bearing Registration No.TME-7210, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent hit the autorickshaw. In the accident, the appellant and others sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,52,000/- under various heads. 3. Before the Tribunal the owner and driver of the lorry remained absent and they were set ex-parte. The insurer of the lorry filed written statement admitting the **MACA.No.1785 OF 2013** ..3.. insurance coverage; however, denying the negligence alleged against the driver of the lorry. The insurer has also disputed the compensation claimed under various heads. 4. The claim petition was tried along with connected matters. Exts.A1 to A15 were marked on the side of the claimants. Both sides have not chosen to adduce any oral evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the lorry by its driver. Since insurance coverage of the lorry was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.27,900/- together with interest at the rate of 7.5% from the date of petition, i.e, 20.06.2002 till realisation with proportionate cost of Rs.2,000/- and directed the insurer to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. **MACA.No.1785 OF 2013** ..4.. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for any enhancement of the compensation already awarded by the Tribunal. ## 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 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. **MACA.No.1785 OF 2013** ..5.. 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 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 Rs)|Amount<br>awarded<br>(in Rs)|Basics – vital<br>details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earnings|10000/-|15000/-|6 months| |2|Transport<br>to<br>Hospital|3000/-|500/-|| |3|Extra<br>nourishment|2000/-|500/-|| **MACA.No.1785 OF 2013** ..6.. |4|Damages<br>to<br>clothing<br>and<br>articles|1000/-|500/-|| |---|---|---|---|---| |5|Medical<br>expenses|25000/-|500/-|No bills| |6|Bystanders<br>expenses|1500/-|900/-|9 days IP| |7|Pain<br>and<br>sufferings|35000/-|7500/-|| |8|Disabilitycaused|35000/-|Nil|| |9|Loss<br>of<br>amenities of life|10000/-|2500/-|| |10|Loss of earning<br>power|30,000/-|Nil|| ||Total||152500/-|27900/-| 12. The accident occurred on 31.01.2002. At the time of accident, the appellant was aged 35 years. She claimed a monthly income of Rs.3,000/- as an Assistant in a Colour Lab. No materials were placed on record to prove the monthly income. 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.2,500/-. ## 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 **MACA.No.1785 OF 2013** ..7.. 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 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 **MACA.No.1785 OF 2013** ..8.. 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. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e, during the year 2002, and taking note of the fixation of notional monthly income by the Apex Court in the decision referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.3,000/-, as claimed in the claim petition, for the purpose of assessing compensation under various heads. **MACA.No.1785 OF 2013** ..9.. 16. The document marked as Ext.A13 is the accident register-cum-wound certificate issued from the Muthoot Medical Centre, Kozehncherry, which would show that the appellant sustained fracture of the lower 1/3[rd] of the right leg bones both; a small incised wound 3 cm in length over the left forehead. Ext.A14 treatment certificate would show that she had undergone inpatient treatment from 31.01.2002 to 09.02.2002 ie; for a period of 9 days. She sustained type I compound fracture both bones right leg and lacerated wound 3 cms long on the left side of forehead. 17. Towards loss of earnings, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.2,500 for a period of 6 months. Considering the nature of injuries sustained by the appellant and the treatment she had undergone as borne out from medical records, the period of 6 months fixed by the Tribunal for loss of earning requires no enhancement. Since the monthly income of the appellant is re-fixed as Rs.3,000/-, the compensation under this head is re-fixed as Rs.18,000/- (Rs.3,000 x 6), resulting an additional compensation of **Rs.3,000** /- (18,000-15,000). **MACA.No.1785 OF 2013** ..10.. 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2002, this Court deem it appropriate to re-fix the compensation under this head as Rs.750/-, resulting an additional compensation of **Rs.250** /- (750500). 19. Towards extra nourishment, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the appellant had undergone inpatient treatment for a period of 9 days, the compensation under this head is re-fixed as Rs.900/- (100 x 9), resulting an additional compensation of **Rs.400** /- (900-500). 20. Towards bystanders expenses, the Tribunal awarded a sum of Rs.900/-. Considering the fact the appellant had undergone inpatient treatment for a period of 9 days, the compensation under this head is re-fixed as Rs.1,350/- (150 x 9), resulting an additional compensation of **Rs.450/-** (1,350- 900). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.500/-. No materials were placed before the Tribunal to prove medical expenses. Therefore, the Tribunal **MACA.No.1785 OF 2013** ..11.. can not be found fault with for not awarding any compensation under this head. 22. Towards pain and sufferings, the Tribunal awarded a sum of Rs.7,500/-, Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.2,500/-** (10,000 – 7,500). 23. Towards loss of amenities, the Tribunal awarded a sum of Rs.2,500/-. Considering the nature of injuries sustained, this Court deem it appropriate to re-fix the compensation under this head as Rs.5,000/-, resulting an additional compensation of **Rs.2,500/-** (5,000 – 2,500) **.** 24. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.9,100/-** (Rupees nine thousand and one hundred only) (3,000 + 250 + 400 + 450 + 2,500 + 2,500)in this appeal, which will carry interest at the rate of 8% per annum, from the date of petition till realisation, excluding the delay for a period of 462 days in filing this appeal, which was condoned by the order dated 01.10.2019 in **MACA.No.1785 OF 2013** ..12.. C.M.Application No.2170/2013, on condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay. The 3[rd] 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 certified copy of this judgmet, after deducting the tax 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. The appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN** SB/16/10/2019 **JUDGE**