Jayakumar v. Bhavanachandran & The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **MACA.No.2868 OF 2009** ## **AGAINST THE AWARD IN OPMV 689/2003 DATED 31-01-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/PETITIONER IN OP(MV):** **JAYAKUMAR, S/O.NATESAN THARAYIL HOUSE, KALAPPURA WARD,, ALAPPUZHA.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** **1 BHAVANACHANDRAN, S/O.MADHAVAN OFF.NO.26, MATHAR SQUARE, OPP.NORTH RAILWAY STATION, KOCHI-18. 2 THE ORIENTAL INSURANCE CO.LTD. BR.OFFICE-II, JEWEL ARCADE, LAYAM ROAD, COCHIN-11.** **R2 BY ADV. K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2868 OF 2009** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.689 of 2003 on the file of the 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 07.07.2002, while he was riding a motorcycle. At the place of accident, the motorcycle was hit by a scooter bearing registration No.KL-7/K-935, owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of scooter by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,24,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex-parte. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the scooter involved in the accident; however, denying the negligence alleged against the 1[st] **MACA.No.2868 OF 2009** 3 respondent owner-cum-rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending scooter was marked as Ext.B1. 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 riding of scooter by the 1[st] respondent rider. Since the 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.25,250/-, together with interest at the rate of 6% per annum from the date of petition till realisation. 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 **MACA.No.2868 OF 2009** 4 and also the learned Standing Counsel for the 2[nd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent owner-cum-rider was dispensed with, by the order dated 12.11.2019. 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 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.2868 OF 2009** 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; |nal under various heads reads thus;|| |---|---| |Head|Amount<br>Rs.| |Transportation|1,000/-| |Damage to clothing|250/-| |Extra nourishment|500/-| |Bystander's expenses|500/-| |Treatment expenses|2,000/-| |Loss of earning<br>(at the rate of RS.1500/- p.m. for two months)|3,000/-| **MACA.No.2868 OF 2009** 6 Pain and suffering 10,000/Loss of amenities in life and enjoyment 8,000 Total 25,250/12. The accident occurred on 07.07.2002. At the time of accident, the appellant was aged 26 years. The appellant claimed a monthly income of Rs.4,000/- as coir maker. No materials were produced before the Tribunal to prove the monthly income of the appellant. 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.1,500/-, 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 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 **MACA.No.2868 OF 2009** 7 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 the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that **MACA.No.2868 OF 2009** 8 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 decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.3,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate and Ext.A5 is the discharge summary. As per Ext.A2 wound certificate issued from Sacred Heart Hospital, Cherthala, the appellant sustained lacerated wound of 2 x 0.5 x 0.5 cm size over lower lip, lacerated wound over dorsal aspect of right middle finger exposing the tendon injury, multiple small abrasions over knees and feet and head injury. Ext.A5 discharge summary issued from Medical College Hospital, Kottayam would show that he had inpatient treatment for a period of 5 days. 17. Towards loss of earning, the Tribunal awarded a sum of **MACA.No.2868 OF 2009** 9 Rs.3,000/-, at the rate of Rs.1,500/- per month for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 3 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.10,500/- (3,500 x 3), resulting an additional compensation of **Rs.7,500/-** (10,500 - 3,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 5 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.500/- (100 x 5). Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-(100 x 5). The **MACA.No.2868 OF 2009** 10 accident is of the year 2002 and the appellant had undergone inpatient treatment for 5 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.750/- (150 x 5), resulting an additional compensation of **Rs.250/-** (750 - 500). The compensation awarded by the Tribunal towards 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.250/-. Considering the fact that the accident is of the year 2002, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 21. Towards treatment expenses, the Tribunal awarded a sum of Rs.2,000/-. In the absence of any reliable 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. 22. As compensation towards pain and suffering, the **MACA.No.2868 OF 2009** 11 Tribunal awarded a sum of Rs.10,000/-. 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.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.8,000/-. No materials were placed on record to prove any permanent disability on account of the injuries sustained in the accident. Considering the nature of injuries sustained, 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. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.13,250/-** (Rupees thirteen thousand two hundred and fifty only) [7,500 + + 250 + 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 2[nd] respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of **MACA.No.2868 OF 2009** 12 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per 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. This appeal is disposed of as above. No order as to costs. ## **Sd/-** JV **ANIL K.NARENDRAN JUDGE**