K.J. Thomas v. Abdul Hakkeem and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941** ## **MACA.No.2211 OF 2008** **AGAINST THE AWARD IN OP(MV)NO.66/2002 DATED 26-02-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/PETITIONER :** **K.J.THOMAS, S/O.THOMAS, KUNNATH HOUSE VALAL, MADAKUNNU POST, KOTTATHARA VILLAGE, WAYANAD DISTRICT.** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENTS/RESPONDENTS:** **1 ABDUL HAKKEEM S/O ABDULLA, PUTHOOR HOUSE, KOTTATHARA,, POST NADAKKUNNU, WAYANAD.** **2 UNITED INDIA INSURANCE CO. LTD. A.M. BUILDINGS, HOSPITAL ROAD,, NILAMBUR 679 329,.** **R2 BY ADV. SRI.PMM.NAJEEB KHAN R1 BY ADV. JAYALATHA M.R.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2211 OF 2008** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.66 of 2002 on the file of the Motor Accidents Claims Tribunal, Kalpetta, 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 16.12.2001, while he was travelling as a pillion rider on a motorcycle bearing registration No.KL-12/B-705 owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, on hitting a pedestrian, the motorcycle overturned and the appellant/ claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/under various heads. 2. Before the Tribunal, the 1[st] respondent ownercum rider remained absent and he was set ex parte. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the motorcycle **MACA.No.2211 OF 2008** **3** involved in the accident; however, denying the negligence alleged against its rider. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. They contended that the compensation claimed is highly excessive. 4. Before the Tribunal, on the side of the appellant/claimant, Exts.A1 to A6 were marked and he was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 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 the motorcycle by the 1[st] respondent. As there was no evidence to prove that additional premium was paid to cover the risk of pillion rider, the 2[nd] respondent insurer was exonerated from the liability and the 1[st] respondent ownercum-rider was held liable to pay the amount of compensation to the appellant/claimant. Under various heads, the Tribunal awarded a total compensation of Rs.7,775/-, together with interest at the rate of 6% per annum from the date of petition till date of deposit, with **MACA.No.2211 OF 2008** **4** proportionate cost, and the 1[st] respondent was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal and also exoneration of the 2[nd] respondent insurer from the liability to indemnify the 1[st] respondent insured, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant, the learned counsel for the 1[st] respondent and also the learned Standing Counsel for the 2[nd] respondent insurer. 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 **MACA.No.2211 OF 2008** **5** 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. 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. **MACA.No.2211 OF 2008** **6** 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Head|Amount awarded in<br>rupees| |---|---| |Loss of earning|300/-| |Transportation to hospital|300/-| |Extra nourishment|300/-| |Damage to clothing|250/-| |Bystander’s expenses|100/-| |Medical expenses|1,525/-| |Pain and suffering|5,000/-| |Total|7,775/-| 12. The accident occurred on 16.12.2001. At the time of accident, the appellant was aged 38 years. The appellant claimed a monthly income of Rs.4,500/- as manual labourer. The appellant himself was examined as PW1. The Tribunal fixed the monthly income of the appellant notionally as Rs.2,100/-, 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 **MACA.No.2211 OF 2008** **7** 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 a vegetable vendor, who met with a road accident in the year **MACA.No.2211 OF 2008** **8** 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2001 and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra and also the evidence of PW1, this Court deem it appropriate to refix the monthly income of the appellant notionally as Rs.3,250/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate, which would show that, on account of the accident, the appellant sustained crush injuries involving 4[th] **MACA.No.2211 OF 2008** **9** toe, little toe of right foot, amputation of right 4[th] toe through the middle, fracture of P.Phalanx and M.Phalanx 5[th] toe. The appellant had undergone inpatient treatment for a period of 7 days. Ext.A6 medical bill is for a sum of Rs.1,525/-. 17. In Ext.A5 disability certificate issued by Dr.Sureshkumar, District Hospital, Mananthavady, the permanent disability of the appellant on account of the injuries sustained in the accident, is assessed as 3%. The Tribunal did not accept the assessment of disability in Ext.A5 since the same was not proved by examining the doctor concerned. Considering the nature of injuries sustained, the Tribunal cannot be found fault with in not accepting the assessment of disability in Ext.A5. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.300/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant loss of earning for a period of 5 months. Since the monthly income of the appellant is refixed notionally as Rs.3,250/-, the compensation under the **MACA.No.2211 OF 2008** **10** head loss of earning is re-fixed as Rs.16,250/- (3,250 x 5) resulting an additional compensation of **Rs.15,950/-** (16,250 - 300). 19. Towards transportation to hospital, the Tribunal awarded a sum of Rs.300/-. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 7 days. The accident is of the year 2001. 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 refixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,700/-** (2,000 - 300). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.100/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.300/-. The accident is of the year 2001 and the appellant had undergone inpatient treatment for 7 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 refixed as Rs.1,050/- (150 x 7), resulting an additional **MACA.No.2211 OF 2008** **11** compensation of **Rs.950/-** (1,050 - 100). The compensation under the head extra nourishment is re-fixed as Rs.700/- (100 x 7), resulting an additional compensation of **Rs.400/-** (700 - 300). 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2001, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.1,525/-, covered by Ext.A6 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. 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 re-fixed as Rs.10,000/-, resulting an **MACA.No.2211 OF 2008** **12** additional compensation of **Rs.5,000/-** (10,000 – 5,000). 24. Towards loss of amenities, no amount has been awarded by the Tribunal. Though Ext.A5 disability certificate was not proved by examining the doctor concerned, considering the nature of injuries sustained by the appellant, which includes crush injury, amputation of right 4[th] toe through the middle, etc., this Court deem it appropriate to grant a sum of **Rs.7,500/-** under the head loss of amenities. 25. In the impugned award, the Tribunal exonerated the 2[nd] respondent insurer on a finding that there was no evidence regarding payment of additional premium to cover the risk of pillion rider. During the course of arguments, the learned Standing Counsel for the 2[nd] respondent insurer submitted that as per Ext.A4 insurance policy, the liability towards pillion rider is also covered. In such circumstances, the finding of the Tribunal to the contra is set aside and 2[nd] respondent insurer is held liable to pay the amount of compensation originally awarded by the Tribunal and also the additional compensation granted in this appeal. 26. In the result, the appellant/claimant will be **MACA.No.2211 OF 2008** **13** entitled for payment of an additional compensation of **Rs.32,000/-** (Rupees Thirty two thousand only) [15,950 + 1,700 + 950 + 400 + 500 + 5,000 + 7,500] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 330 days in filing this appeal, which was condoned by the order dated 31.07.2017 in C.M.Appln.No.2250 of 2008, subject to the condition that the appellant shall not be entitled to interest on the enhanced compensation, if any, granted for the period of delay. The 2[nd] respondent insurer shall satisfy the amount of compensation originally granted by the Tribunal and also 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 and Legal Benefit Fund. The disbursement of compensation to the appellant/claimant 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 **MACA.No.2211 OF 2008** **14** dated 07.11.2019. The appellant shall provide his 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 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** AV/20/1