Koyamu s/o Moidu v. Ibrahim Badusha and Sakeer and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **MACA.No.389 OF 2016** ## **AGAINST THE AWARD IN OPMV 481/2013 DATED 19-03-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **KOYAMU S/O.MOIDU AGED 44 YEARS KALATHILTHODI HOUSE, VALLAPUZHA POST, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.R.SREEHARI** ## **RESPONDENTS/RESPONDENTS:** - **1 IBRAHIM BADUSHA, AGED 24 YEARS S/O.HAMSA, SHAKKEER MANZIL, AMBALAPPARA POST,OTTAPALAM TALUK, PALAKKAD DISTRICT, 679512.** - ***2 SAKEER, 43 YEARS, S/O.ABDUL RAHIMAN, 5/561, POONGOTTIL VEEDU,ARAKURUSSI, MANALADI, THENKKARA POST, PALAKKAD DISTRICT, PIN 678761.** **R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK AND COST OF HTE APPELLANT VIDE ORDER DATED 24.10.2019 IN IA NO.1/2019 IN MACA 389/16** - **3 UNITED INDIA INSURANCE COMPANY LTD. 2ND FLOOR, PARAPPURATH TOWER, MAIN ROAD, OTTAPALAM,PALAKKAD DISTRICT, PIN 679101.** **R1, R3 BY ADV. SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.389 OF 2016** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.481 of 2013 on the file of the Motor Accidents Claims Tribunal, Vatakara, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, which occurred on 16.01.2013, while he was riding a motorcycle bearing registration No.KL-52/8145. At the place of accident, the said motorcycle was hit by a Bolero jeep bearing registration No.KL-01/Y-2255 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of jeep by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,75,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent/insurer filed written statement admitting the insurance coverage of the jeep involved in the accident; however, denying the negligence alleged against the 1[st] **MACA.No.389 OF 2016** 3 respondent driver. 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 A8 were marked on the side of the appellant/claimant. 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 offending jeep by the 1[st] respondent driver. Since the insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,11,650/-, together with interest at the rate of 9% per annum from the date of petition till date of realisation, with cost. The insurer was directed to satisfy the award within 30 days from the date of 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 and also the learned Standing Counsel for the 3[rd] **MACA.No.389 OF 2016** 4 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 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 **MACA.No.389 OF 2016** 5 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: |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>(in Rs.)|Basis-vital details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earning (total)|15,000|25,000|5000x5| |2|Loss of earning (partial)|--|--|| |3|Medical and<br>miscellaneous expenses|65,000|57,250|Medical bills worth<br>Rs.57,234/- rounded<br>to Rs.57,250/-| |4|Future treatment|10,000|Nil|Not proved| |5|Bystander expense|5,000|1,200|Hospitalisation for 6<br>days 200 x 6| |6|Transportation expenses|5,000|1,500|Several reviews and<br>several admissions in<br>the hospital| |7|Extra nourishment|5,000|1,200|| |8|Damage to clothing etc|1,000|500|| |9|Pain and suffering|20,000|15,000|Lacerated wound 12 x<br>8cm over Rt.knee,<br>swelling<br>and<br>tenderness<br>Rt.leg,<br>fracture both bone<br>Rt.leg| **MACA.No.389 OF 2016** 6 |10|Loss of disfiguration|--|--|| |---|---|---|---|---| |11|Loss of other expenses|--|--|| |12|Loss of love and affection|--|--|| |13|Loss of expectation of life|--|--|| |14|Loss of earning power|10,000|Nil|Not proved| |15|Loss of enjoyment and<br>amenities in life|14,000|10,000|| |16|Compensation<br>for<br>continuing partial or<br>permanent disability|25,000|Nil|Not proved| ||Total|1,75,000|1,11,650|| 12. The accident occurred on 16.01.2013. At the time of accident, the appellant was aged 41 years. The appellant claimed a monthly income of Rs.30,000/- as employee in Gulf. 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.5,000/-, 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 **MACA.No.389 OF 2016** 7 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 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 **MACA.No.389 OF 2016** 8 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. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2013, 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.9,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A6 is the wound certificate. As per medical records, the appellant had sustained lacerated wound 12 x 8 cm over right knee, swelling and tenderness right leg, fracture both bone right leg. The appellant had undergone inpatient treatment for a period of six days. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.25,000/-, at the rate of Rs.5,000/- per month for a period of 5 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 5 months fixed by the Tribunal for **MACA.No.389 OF 2016** 9 granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.9,000/-, the compensation under the head loss of earning is re-fixed as Rs.45,000/- (9,000 x 5), resulting an additional compensation of **Rs.20,000/-** . 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 6 days. Towards transportation expense, the Tribunal awarded a sum of Rs.1,500/-. 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 re-fixed as Rs. 2,000/-, resulting an additional compensation of **Rs. 500/-** (2,000 – 1,500) under this head. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.1,200/- (200 x 6). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,200/- (200 x 6). The accident is of the year 2013 and the appellant had undergone inpatient treatment for 6 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. 1,500/- (250 x 6), resulting **MACA.No.389 OF 2016** 10 an additional compensation of **Rs. 300/-** (1,500 – 1,200) under this head. The compensation awarded by the Tribunal under the head extra nourishment cannot be said to be on the lower side. 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2013, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** . 21. Towards medical expenses, the Tribunal awarded a sum of Rs.57,250/-, covered by Ext.A8 series of 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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 cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 23. Though no documents have been produced to prove any permanent disability, considering the nature of injuries **MACA.No.389 OF 2016** 11 sustained, the Tribunal awarded a sum of Rs.10,000/- towards loss of enjoyment and amenities of life. The compensation awarded by the Tribunal under this head cannot also be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 24. Towards future treatment expense, the appellant claimed a sum of Rs.10,000/-. No documents were placed on record before the Tribunal to substantiate the said claim. Therefore, the Tribunal awarded no compensation under this head. In this appeal, along with I.A.No.521 of 2016, the appellant has produced certificate dated 9.12.2015 issued from KIMS Al Shifa Hospital and certain bills. Considering the nature of injuries sustained by the appellant and taking note of the fact that the implant is yet to be removed, this Court deem it appropriate to grant a sum of **Rs.5,000/-** towards future treatment, which will carry no interest. In the result, the appellant will be entitled for payment of an additional compensation of **Rs. 26,300/-** (Rupees Twenty six thousand three hundred only) [20,000 + 500 + 300 + 500 + 5,000] in this appeal, out of which Rs.21,300/- (26,300-5,000) will carry interest at the rate of **8%** per annum from the date of **MACA.No.389 OF 2016** 12 petition, i.e., 07.09.2013 till realisation, excluding the period of delay of 230 days, which was condoned vide order dated 24.10.2019 in C.M.Application No.493 of 2016, subject to the condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay. 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 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. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** jv