K. Ramachandran v. The New India Assurance Co Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941** ## **MACA.No.3666 OF 2019** **AGAINST THE AWARD DATED 17.12.2018 IN OP(MV)NO.552/2017 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANT/PETITIONER:** **K.RAMACHANDRAN, AGED 54 YEARS S/O.KRISHNANKUTTY, SINDHU MANDIRAM, POONGODE, ALATHUR, PALAKKAD - 678 541.** **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENT/2ND RESPONDENT:** **THE NEW INDIA ASSURANCE CO LTD., SRI VALLI BUILDING COMPLEX, ANICODE JUNCTION, CHITTUR, PALAKKAD DISTRICT - 678 101, REPRESENTED BY ITS BRANCH MANAGER.** ## **BY ADV.SRI A .A.ZIYAD RAHMAN, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3666 OF 2019** 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV) No.552 of 2017, on the file of the Motor Accidents Claims Tribunal, Palakkad, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident, which occurred on 20.11.2016, while he was riding a motorcycle bearing registration No.KL-09/B-8420. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-09/AJ-2391, owned and ridden by the 1[st] respondent before the Tribunal and insured with the respondent herein. In the accident, the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the offending motorcycle by its rider, a claim petition was filed before the Tribunal claiming a total compensation of Rs.9,53,000/under various heads, which was limited to Rs.2,00,000/- for the purpose of payment of court fee. 2. Before the Tribunal the owner cum rider of the offending motorcycle remained absent and he was set ex-parte. The respondent insurer entered appearance and filed written statement admitting the insurance coverage; however denying the negligence alleged against the rider of the offending motorcycle. The insurer **MACA.No.3666 OF 2019** 3 contended that the compensation claimed is exorbitant. The occupation and monthly income, etc of the appellant/claimant was also disputed. 3. Before the Tribunal, Exts.A1 to A20 were marked on the side of the appellant/claimant and Ext.B1 policy copy was marked on the side of the respondents. 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 1[st] respondent owner cum rider and in such circumstances, the respondent insurer is liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,15,237/together with interest at the rate of 9% per annum from the date of petition till the date of deposit, with proportionate cost and the respondent insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant and the learned Standing Counsel for the respondent/insurer. 7. The issue that arises for consideration in this appeal is as **MACA.No.3666 OF 2019** 4 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 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 **MACA.No.3666 OF 2019** 5 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. 10. 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<br>Rupees)|Amount<br>awarded<br>(in Rupees)|Basis/Vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|1,50,000|14,000|7000x2 months| |2|Transportation to hospital|20,000|5,000|Reasonable<br>amount awarded| |3|Damage to clothing and<br>articles|3,000|1,000|Reasonable<br>amount awarded| |4|Extra nourishment|10,000|2,000|Reasonable<br>amount awarded| |5|Expenses of a bystander|20,000|1,200|Rs.300 x 4 days<br>(Ext.A12)| |6|Medical expenses|1,00,000|62,037|Ext.A14 series| |7|Compensation for pain<br>and suffering|1,00,000|20,000|Reasonable<br>amount awarded| |8|Compensation for loss of<br>amenities and enjoyment<br>in life|1,00,000|10,000|Reasonable<br>amount awarded| ||**Total**||**1,15,237/-**|| 11. 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. **MACA.No.3666 OF 2019** 6 12. 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. ## 13. 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 **MACA.No.3666 OF 2019** 7 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. 14. The accident occurred on 20.11.2016. At the time of accident, the appellant was aged 52 years. He claimed a monthly income of Rs.15,000/- as a coolie (manual labourer). The appellant has not chosen to mount the box. In such circumstances, the Tribunal fixed the monthly income notionally as Rs.7,000/- for the purpose of assessing compensation under various heads. ## 15. 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 **MACA.No.3666 OF 2019** 8 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. 16. 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. 17. In the absence of any reliable evidence, considering the **MACA.No.3666 OF 2019** 9 economic conditions prevailing at the time of accident, i.e., during the year 2016, 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 refix the monthly income of the appellant notionally as Rs.10,500/-, for the purpose of assessing compensation under various heads. 18. Ext.A11 wound certificate issued from Kovai Medical Centre, Coimbatore would show that the appellant sustained head injury, abrasions left forehead, lacerated wound over anterior aspect of distal 3[rd] of right leg 10 x 5 cms, multiple abrasions left knee, multiple abrasions left foot and multiple abrasions right forearm. Ext.A12 is the discharge summary, which would show that the appellant had undergone inpatient treatment for a period of four days. Wound debridement and suturing were done from the hospital. Ext.A14 series are the medical bills for a total sum of Rs.62,037/-. 19. Towards loss of earning the Tribunal awarded a sum of Rs.14,000/- at the rate of Rs.7000/-, for a period of two months. Considering the nature of injuries sustained by the appellant and the treatment he had undergone, the period of two months fixed by the Tribunal for granting loss of earning warrants no interference in **MACA.No.3666 OF 2019** 10 this appeal. Since the monthly income of the appellant is refixed as Rs.10,500/-, the compensation under this head is re-fixed as Rs.21,000/- (10,500x2), resulting an additional compensation of **Rs.7,000/-** (21,000-14,000). 20. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/- and a further sum of Rs.2,000/- was awarded towards extra nourishment. Towards bystander expenses a sum of Rs.1,200/- was awarded, at the rate of Rs.300/-, for a period of four days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 21. 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 2016, the compensation under this head can be re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500-1,000). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.62,037/- covered by Ext.A14 series of bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable and compensation, **MACA.No.3666 OF 2019** 11 which warrants no enhancement in this appeal. 23. As compensation for pain and suffering the Tribunal awarded a sum of Rs.20,000/- and towards loss of amenities and enjoyment in life, a further sum of Rs.10,000/- was awarded. 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 these heads cannot be said to be on the lower side and as such, no enhancement is warranted. In the result, the appellant will be entitled for payment of an enhanced compensation of **Rs.7,500/-** (Rupees Seven Thousand and Five Hundred only) (7,000+500) in this appeal, which will carry interest at the rate of 8% per annum, from the date of petition till realisation. The respondent insurer shall satisfy the additional compensation granted in this appeal together with cost, within two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant 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. **MACA.No.3666 OF 2019** 12 This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** **JUDGE** jv