K.C. Bijoy v. Navas K.H., Shakeer So. Moonakkaparambil Kadher, United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **MACA.No.2167 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.1560/2003 DATED 02-12-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER :** **K.C.BIJOY, S/O.CHANDRAN KURUPATH HOUSE, KOORIKKUZHI DESOM, KAIPAMANGALAM, VILLAGE, KODUNGALLUR TALUK.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** - **1 NAVAS K.H. KUNNUNGAL HOUSE, KAIPAMANGALAM P.O., KOORIKKUZHI, THRISSUR DISTRICT.** - **2 SHAKEER SO. MOONAKKAPARAMBIL KADHER KAIPAMANGALAM P.O., KOORIKKUZHI, THRISSUR DIST.** - **3 UNITED INDIA INSURANCE CO.LTD. PARK HOUSE, ROUND NORTH, THRISSUR.** **R1 BY ADV. SRI.P.K.MANOJKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2167 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1560 of 2003 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, which is 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 19.08.2003, while he was travelling as pillion rider in a motorcycle bearing registration No.KL-8/W5081 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, while the rider of the motorcycle was giving side to a bus, the motorcycle fell into a gutter. The appellant/claimant fell down and sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,25,000, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent/insurer filed written statement admitting the **MACA.No.2167 OF 2009** **3** insurance policy; but contending that the pillion rider is not covered by the policy issued by the insurer. 3. Before the Tribunal, Exts.A1 to A5 were marked on the side of the appellant/claimant. Ext.B1 insurance policy certificate was marked on the side of the respondents. 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 riding of the motorcycle by the 2[nd] respondent rider. Though the 3[rd] respondent insurer pleaded before the Tribunal that pillion rider is not covered under the policy, relying on the judgment of this Court in **New India Assurance Company Ltd. v. Hydrose [2008 (3) KLT 778]** , the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.26,700/- and the insurer was directed to satisfy the award, with interest at the rate of 7% per annum from the date of petition till 10.12.2007 and thereafter, from 04.10.2008 till realisation, together with proportionate cost. **MACA.No.2167 OF 2009** **4** 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. Since the insurance coverage of the offending vehicle is not in dispute, service of notice on the 1[st] respondent is dispensed with. 7. 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. 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 **MACA.No.2167 OF 2009** **5** 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 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; **MACA.No.2167 OF 2009** **6** |Medical expenses|Rs.3,050/-| |---|---| |Hospital expenses|Rs.400/-| |Transportation expenses|Rs.250/-| |Loss of income|Rs.4000| |Pain and sufferings|Rs.8,000/-| |Discomfort and loss of amenities|Rs.3,000/-| |Partial loss of teeth|Rs.8,000/-| |**Total**|**Rs.26,700/-**| 11. The accident occurred on 19.08.2003. At the time of accident, the appellant was aged 26 years. He claimed a monthly income of Rs.4,500/- as a Businessman. No documents were produced before the Tribunal to prove the monthly income. He has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,000/-, 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 **MACA.No.2167 OF 2009** **7** 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. 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 **MACA.No.2167 OF 2009** **8** 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. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2003, 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.4,000/-, for the purpose of assessing compensation under different heads. 15. Ext.A3 wound certificate issued from Al-Iqbal Hospital, Chenthrappinny shows that the appellant was admitted there with lacerated injury over the lower part of left knee, another lacerated wound over the upper lip with **MACA.No.2167 OF 2009** **9** tissue loss and investigation revealed fracture of the distal end of right radius. There was also partial loss of four teeth. Ext.A4 discharge card shows that the appellant was in the hospital as inpatient for four days. 16. Towards loss of income, the Tribunal awarded a sum of Rs.4,000/-, at the rate of Rs.2,000/- 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 can be enhanced to 3 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.12,000/- (4,000x3), resulting an additional compensation of **Rs.8,000/-** (12,000-4,000). 17. Towards transportation expenses, the Tribunal awarded a sum of Rs.250/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **MACA.No.2167 OF 2009** **10** **Rs.750/-** under this head (1,000-250). 18. Towards extra nourishment and bystander expenses no amount has been awarded by the Tribunal. Considering the nature of injuries sustained by the appellant and also the period of hospitalisation for four days, as borne out from Ext.A4 discharge card, this Court deem it appropriate to grant an amount of **Rs.400/-** (100x4) as compensation towards extra nourishment and a further sum of **Rs.600** (150x4) towards bystander expenses. 19. Towards damage to clothing and articles, nothing has been awarded by the Tribunal. Considering the fact that the accident is of the year 2003, an amount of **Rs.1,000/-** is awarded as compensation under this head. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.3,050/-, which is covered by Ext.A5 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 **MACA.No.2167 OF 2009** **11** Tribunal awarded a sum of Rs.8,000/-. 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 is refixed as Rs.10,000/-, resulting an additional compensation of **Rs.2,000/-** (10,000-8,000). 22. Towards compensation for partial loss of teeth, Tribunal awarded an amount of Rs.8,000/-. Considering the nature of injuries sustained by the appellant as borne out from Ext.A3 wound certificate, this Court deem it appropriate to enhance the compensation under the said head as Rs.10,000/-, resulting an additional compensation of **Rs.2,000/-** (10,000-8,000). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and loss of four teeth, the compensation awarded by the Tribunal under this head is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.4,500/-** (7,5003,000). 24. In the result, the appellant will be entitled for an **MACA.No.2167 OF 2009** **12** additional compensation of **Rs.19,250/-** (Rupees Nineteen thousand two hundred and fifty only) [8,000+750+400+ 600+1000+2000+2000+4,500] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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 judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/29/10