John @ Lonachan and others v. Sadasivan and Manoj and National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **MACA.No.139 OF 2008** **AGAINST THE AWARD IN OPMV 337/2002 DATED 25-08-2006 OF ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA.** ## **APPELLANTS/PETITIONERS:** **1 JOHN @ LONACHAN,(EXPIRED) AGED 50 YEARS, S/O VARKEY, MADATHI VELI HOUSE, T.P.WARD NO.16, MARUTHORVATTAM P.O., CHERTHALA, ALAPPUZHA DISTRICT. * ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED. 2 MARIAMMA, AGED 54 YEARS, W/O JOHN, MADATHI VELI HOUSE, T.P. WARD NO 16, MARUTHORVATTAM P.O., CHERTHALA, ALAPUZHA DISTRICT. 3 JISHA, AGED 30 YEARS, D/O JOHN, MADATHI VELI HOUSE, T.P. WARD NO 16, MARUTHORVATTAM P.O., CHERTHALA, ALAPUZHA DISTRICT. 4 JOSHY, AGED 28 YEARS, S/O JOHN, MADATHI VELI HOUSE, T.P. WARD NO 16, MARUTHORVATTAM P.O., CHERTHALA, ALAPUZHA.** **MACA.No.139 OF 2008** **2** **5 MARIAMMA, W/O VARKEY, VATTUKULATHILCHIRA, CHERTHALA P.O., ALAPUZHA DISTRICT.** **BY ADV. SRI.K.M.FIROZ** ## **RESPONDENTS/RESPONDENTS:** **1 SADASIVAN, S/O VELUTHA, SHAJI NIVAS, THAICKAL P.O., CHERTHALA, ALAPPUZHA, MDL NO.A490/72, BADGE MO. NO.A375/73, VALID UPTO 23/02/2003. 2 MANOJ, S/O CHANDRA KURUP, POOTHAKULATHU, C.M.C.16, CHERTHALA, ALAPPUZHA. 3 NATIONAL INSURANCE CO. LTD., ALAPPUZHA, REP. BY ITS MANAGER. R1 BY ADV. SRI.P.JAYASANKAR** ## **OTHER PRESENT:** **SRI. LAL GEORGE, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.139 of 2008 3 ## **JUDGMENT** The original appellant is the claimant in O.P.(MV)No.337 of 2002 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 21.11.2000, while he was getting into a stage carriage bearing registration No.KEE-3518 owned and driven by the 1[st] respondent and insured with the 3[rd] respondent. 2[nd] respondent was the conductor of the bus. While the claimant was getting into the bus, the conductor gave signal to move the bus. The driver took the bus forward at a high speed and the claimant was thrown out of the bus, through back door. His body hit against a telephone post and he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,30,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver of the bus and the 2[nd] respondent conductor remained MACA No.139 of 2008 4 absent and they were set ex parte. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the bus involved in the accident; however, contending that the accident occurred solely due to the negligence of the claimant. The insurer contended that the claimant sustained only minor injuries and therefore, the compensation claimed is on the higher side. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the 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 driving of the bus by its driver and also on account of contributory negligence on the part of the claimant. The Tribunal fixed negligence between the claimant and the 1[st] respondent driver of the bus in the ratio 50:50 and accordingly, the claimant was found entitled only to 50% of the total compensation. Under various heads, the Tribunal awarded a total compensation of Rs.18,250/- and the claimant was found entitled for a sum of Rs.9,125/- (50% of Rs.18,250/-) MACA No.139 of 2008 5 together with interest at the rate of 7.5% per annum from the date of petition till realisation, with proportionate cost, and the 3[rd] respondent insurer was directed to satisfy the award. 5. Challenging the finding of the Tribunal on the question of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the original appellant/claimant filed this appeal before this Court. During the pendency of this appeal, the original appellant died and his legal heirs are impleaded as additional appellants 2 to 5, by the order dated 03.03.2017 in I.A.No.670 of 2017. 6. Heard the learned counsel for additional appellants 2 to 5 and also the learned Standing Counsel for the 3[rd] respondent insurer. 7. The issues that arise for consideration in this appeal are as to whether the finding of the Tribunal on the question of contributory negligence can be sustained in law; and whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation. 8. The document marked as Ext.A1 is a copy of the FIR in the crime registered in connection with the motor accident in MACA No.139 of 2008 6 question, against the 1st respondent driver of the bus. Ext.A2 is a copy of FIS. The final report filed by the police, after investigation, was not produced before the Tribunal. In Ext.A3 wound certificate it is mentioned that, the claimant sustained injury while travelling on the footboard of the bus, as his body hit against the telephone post. Since the accident occurred while the claimant was travelling on the footboard of the bus, the Tribunal fixed 50% contributory negligence on the claimant and 50% negligence on the driver of the bus. 9. In **Meera Devi v. H.P. Road Transport Corporation [(2014) 4 SCC 511]** a Three-Judge Bench of the Apex Court reiterated that to prove contributory negligence, there must be cogent evidence. 10. In **Bhaskaran v. Ravindran [1990 (1) KLT 607]** a Division Bench of this Court was dealing with a case in which the appellant sustained injuries, while travelling on the footboard of a bus. It was contended before this Court, by the leaned counsel for respondents 1 and 2 that, the travel on footboard by the injured had contributed to the accident as well as the nature and extent of the injuries. Repelling the said contention, the Division Bench MACA No.139 of 2008 7 held that, it is the duty of the conductor to see that the bus is set in motion only after all alighting passengers have alighted and passengers intending to travel in the bus boarded the bus. Conductor has a statutory duty to see that there are no footboard passengers. If a passenger is on the footboard and there is no space at all for him to sit or stand inside the bus, he must be asked to get down and the bus can be set in motion only after he alights. When there is sitting or standing space inside the bus, it is the duty of the conductor to see that a passenger who is on the footboard gets inside the bus and seats himself or stands in the space reserved for standing passengers before giving signal for the bus to start. This corresponds with the driver's duty to ensure that bus is moved only after ensuring safe travel conditions. In the discharge of his duty he is largely guided by the instructions of the conductor. If a bus with no vacant seats and no standing space is started when a passenger is on the footboard and he is not asked to alight from the bus or not cautioned against travel on footboard and accident takes place and the footboard passenger sustains injury, wholly or partly on account of his position in the footboard, he cannot be held to be guilty of contributory MACA No.139 of 2008 8 negligence. It may be that, if he refuses to alight inspite of the direction by the conductor or if he is cautioned about the risk he is undertaking by travel on foot board, it is not possible to absolve the driver of the responsibility in the accident. Therefore, the Division Bench held that the appellant/injured was not guilty of contributory negligence. 11. In the instant case, the case of the claimant was that, while he was getting into the bus, the conductor gave signal to move the bus. The driver took the bus forward at a high speed. The claimant was thrown out of the bus, through back door, and his body hit against a telephone post. Based on 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 bus by the 1st respondent driver. Before the Tribunal, the 3rd respondent insurer has not chosen to adduce any oral or documentary evidence to substantiate its contention that the accident occurred due to contributory negligence of the claimant. Therefore, in the absence of any cogent and convincing evidence from the side of the 3rd respondent insurer, the Tribunal committed a grave error in holding that, there was contributory MACA No.139 of 2008 9 negligence on the part of the claimant, and fixing 50% liability on the claimant. The finding to that effect in the impugned award is set aside and it is held that the accident occurred solely due to the rash and negligent driving of bus by the 1st respondent driver. In the result, additional appellants 2 to 5, who are the legal heirs of the deceased claimant, will be entitled for payment of a sum of **Rs.9,125/-** deducted by the Tribunal (based on the finding of 50% contributory negligence) together with interest at the rate of **8%** per annum from the date of petition till realisation, with proportionate cost. 12. Now the issue that remains to be considered is as to whether additional appellants 2 to 5 are entitled for enhancement of the compensation awarded by the Tribunal under various heads. 13. 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 MACA No.139 of 2008 10 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. 14. 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. 15. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; MACA No.139 of 2008 11 |Sl.<br>No.|Head of claim|Amount<br>awarded<br>(in Rs.)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---| |1|Transportation|500|7 days in the<br>hospital| |2|Damage to clothing|250|| |3|Extra nourishment|500|| |4|Bystander expenses|500|| |5|Treatment expenses|1,000|| |6|Loss of earnings|1,500|| |7|Pain and suffering|10,000|Suffered<br>fracture of TPL3<br>(L) and<br>contusion on TL<br>spine| |8|Loss of amenities in<br>life and enjoyment|4,000|| ||Total|18,250<br>**Rs.9,125/-**|(50%<br>contributory<br>negligence)| 16. The accident occurred on 21.11.2000. At the time of accident, the appellant was aged 45 years. The appellant claimed a monthly income of Rs.4,500/- as a headload worker. The Tribunal did not fix the notional monthly income of the appellant, since no compensation was awarded under the head permanent disability, in the absence of any disability certificate. The Tribunal awarded a consolidated amount of Rs.1,500/- towards loss of earnings. MACA No.139 of 2008 12 17. 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 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. 18. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the MACA No.139 of 2008 13 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 Rs.6,500/- per month. 19. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2000, 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.2,500/-, for the purpose of assessing compensation under various heads. 20. The document marked as Ext.A3 is the wound MACA No.139 of 2008 14 certificate; Ext.A4 is the medical certificate; and Ext.A5 is discharge card. As per medical records, in the accident, the claimant sustained tenderness over sacral and iliac region; abrasion (L) leg above ankle joint; tenderness (L) thigh. He sustained fracture of transverse process of L3 vertebra and contusion on the thrombo lumbar spine. He had undergone inpatient treatment for a period of seven days. Ext.A6 medical bill is for a sum of Rs.235/-. 21. The Tribunal awarded a consolidated amount of Rs.1,500/- towards loss of earnings. In the accident, the claimant sustained fracture of transverse process of L3 vertebra and contusion on the thrombo lumbar spine. He had undergone inpatient treatment for a period of seven days. Considering the nature of injuries sustained and his employment as headload worker, the claimant can be granted loss of earning for a period of 6 months. Since the notional monthly income of the claimant is re-fixed as Rs.2,500/- in this appeal, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (2,500 x 6), resulting an additional compensation of **Rs.13,500/-** (15,000 – 1,500). MACA No.139 of 2008 15 22. The Tribunal awarded no compensation under the head permanent disability. The Tribunal awarded a sum of Rs.4,000/under the head loss of amenities. 23. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** the Apex Court held that, the provisions of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The Court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to MACA No.139 of 2008 16 earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: ## Pecuniary damages (Special damages) - (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. - (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: - (a) Loss of earning during the period of treatment; - (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. ## - Non pecuniary damages (General damages) - (iv) Damages for pain, suffering and trauma as a consequence of the injuries. - (v) Loss of amenities (and/or loss of prospects of marriage). - (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical MACA No.139 of 2008 17 expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 24. No materials were placed before the Tribunal to prove that, the injuries sustained in the accident had resulted in any permanent disability. In the absence of any such materials, the case of the claimant can only be treated as a routine personal injury case, in which no compensation can be granted under the heads permanent disability or loss of amenities. Therefore, the Tribunal cannot be found fault with in not granting any compensation under the head permanent disability. Considering the nature of injuries sustained by the claimant, i.e., fracture of transverse process of L3 vertebra and contusion on the thrombo lumbar spine, this Court deem it appropriate not to interfere with the compensation of Rs.4,000/- awarded by the Tribunal under the head loss of amenities. 25. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. The accident is of the year 2000. On account of the injuries sustained in the accident, the claimant had undergone inpatient treatment for seven days. Considering the nature of injuries sustained and the treatment the claimant had MACA No.139 of 2008 18 undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500). 26. Towards bystander expenses the Tribunal awarded a sum of Rs.500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2000 and the claimant had undergone inpatient treatment for seven days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head bystander expenses is re-fixed as Rs.1,050/- (150 x 7), resulting an additional compensation of **Rs.550/-** (1,050 - 500). The compensation under the head extra nourishment is re-fixed as Rs.700/- (100 x 7), resulting an additional compensation of **Rs.200/-** (700 - 500). 27. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. The accident is of the year 2000. Therefore, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 28. Towards medical expenses, the Tribunal awarded a sum MACA No.139 of 2008 19 of Rs.1,000/-. Ext.A6 medical bill is for a sum of Rs.235/-. In the absence of any further 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. 29. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained by the claimant, i.e., fracture of transverse process of L3 vertebra and contusion on the thrombo lumbar spine, and the treatment he had undergone, 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). 30. In the result, the 2[nd] appellant, the wife of the original appellant/claimant will be entitled for payment of an additional/ balance compensation of **Rs.29,875/-** (Rupees twenty nine thousand eight hundred and seventy five only) [9,125 + 13,500 + 1,000 + 550 + 200 + 500 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, together with proportionate cost for the balance compensation of Rs.9,125/- (in terms of the award). The MACA No.139 of 2008 20 3[rd] respondent insurer shall satisfy the additional/balance compensation granted in this appeal, 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 claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional/balance compensation to the 2[nd] appellant 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 2[nd] appellant shall provide her 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** MIN