Marshal K.M. v. C. Saleeshkumar & ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** ## **MACA.No.1464 OF 2010** **AGAINST THE AWARD IN OP(MV) No.2942/2002 DATED 29-01-2009 OF SPECIAL C SPE/CBI-I&3 ADDITIONAL DISTRICT COURT .ADD MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** **APPELLANT/S:** **MARSHAL K.M., S/O MATHAI, AGED 40 YEARS KARUKAPPULLY HOUSE, NETTOOR P.O.-682304,, MARADU, ERNAKULAM.** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENT/S:** **1 C.R.SALEESHKUMAR, S/O. RAGHAVAN CHANIYIL HOUSE, KUMBALAM P.O., ERNAKULAM DISTRICT, 682506. 2 RIJU SO.KALESHAN KADUMPURATH HOUSE THEVARA P.O., ERNAKULAM VILLAGE,, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, KOCHI-13. 3 THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., PALARIVATTOM BRANCH,, MYDHILY MANDIRAM, JANATHA JUNCTION,, PALARIVATTOM, KOCHI-682025.** **R1 BY ADV. SRI.S.K.BALACHANDRAN R1 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 1464 of 2010 -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2942 of 2002 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 29.12.2001, while he was travelling in a Swaraj Mazda van bearing registration No.KL-01/C-6768, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, while overtaking another vehicle, the Swaraj Mazda van hit on a mini lorry, which was parked on the side of the highway. In the accident, the appellant and other co-passengers sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of Swaraj Mazda van by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.9,06,290/- 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 MACA No. 1464 of 2010 -3- admitting insurance coverage of the van involved in the accident; however, denying negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with connected matters. Exts.A1 to A9 and A17 were marked on the side of the appellant/claimant. Exts.A10 to A16 are the documents marked in the connected claim petitions. The appellant was examined as PW1. 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 driving of the van by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,01,344/-, 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] MACA No. 1464 of 2010 -4- respondent insurer was directed to satisfy the 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] 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 MACA No. 1464 of 2010 -5- 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. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ## **Head Amount awarded** Medical expenses (supported by bills) 32,894 MACA No. 1464 of 2010 -6- |transportation|| |---|---| |(supported by bills)|3,200| |damage to clothes|250| |attendant expenses &|| |extra nourishment|6,000| |shock, pain & sufferings|25,000| |loss of earning|12,000| |loss of amenities and convenience|<br>12,000| |towards future treatment|10,000| ||-------------------| |total|1,01,344| ||==========| 12. The accident occurred on 29.12.2001. At the time of accident, the appellant was aged 34 years. The appellant claimed a monthly income of Rs.4,650/- as autorickshaw driver. In order to prove monthly income, the appellant produced Exts.A8 and A9 certificates issued by one M/s.Joseph Edathil Brothers, Ernakulam. However, those documents were not proved by examining the person concerned. The appellant was examined as PW1. 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. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** MACA No. 1464 of 2010 -7- **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. 14. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note MACA No. 1464 of 2010 -8- 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. 15. In the absence of any reliable evidence, 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 re-fix the monthly income of the appellant notionally as Rs.3,250/-, for the purpose of MACA No. 1464 of 2010 -9- ## assessing compensation under various heads. 16. The document marked as Ext.A2 is the accidentcum-wound certificate and Ext.A4 is the discharge summary. As per medical records, after the accident, the appellant was brought to the Medical College Hospital, Thrissur in an unconscious state. His pelvic bone was detached and disrupted. On 30.12.2001 he was taken to Medical Trust Hospital, Ernakulam. The appellant had undergone inpatient treatment for a period of 30 days. As per Ext.A4 discharge summary, the appellant was admitted at Medical Trust Hospital with closed comminuted fracture right humerus upper one-third and symphysis pubis diastasis with left sacroiliac joint disruption. He had undergone various surgeries and implant was fixed. Ext.A7 series of medical bills are for a sum of Rs.32,894/-. The appellant has also produced bills for Rs.3,200/- towards transportation expenses. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.2,000/- for a period of 6 months. In the accident, the pelvic bone of the appellant was detached and disrupted. Considering the nature of injuries MACA No. 1464 of 2010 -10- sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is re-fixed as 8 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,250/-, the compensation under the head loss of earning is re-fixed as Rs.26,000/- (3,250 x 8), resulting an additional compensation of **Rs.14,000/-** (26,000 – 12,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 30 days. The accident is of the year 2001. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,200/- covered by bills. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards attendant expenses (bystander expenses) and extra nourishment the Tribunal awarded a consolidated sum of Rs.6,000/-. The accident is of the year 2001 and the appellant had undergone inpatient treatment for 30 days. Considering the nature of injuries sustained and the treatment MACA No. 1464 of 2010 -11- the appellant had undergone, as borne out from medical records, the appellant is granted Rs.4,500/- (150 x 30) under the head attendant expenses and a further sum of Rs.3,000/(100 x 30) under the head extra nourishment, resulting an additional compensation of **Rs.1,500/-** [(4,500 + 3,000) – 6,000]. 20. Towards damage to clothing, 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 - 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.32,894/-, covered by Ext.A7 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.25,000/-. In the accident, the pelvic bone of the appellant was detached and disrupted. MACA No. 1464 of 2010 -12- 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 re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs.5,000/-** (30,000 – 25,000). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.12,000/-. No documents were placed on record before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability. Though an application was filed before the Tribunal for assessing the permanent disability by Medical Board, the said application was dismissed as not pressed. In the absence of any reliable 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. 24. Towards future treatment expenses, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court notice that the appellant has to undergo surgery for implant removal. Considering the said fact, the MACA No. 1464 of 2010 -13- compensation under the head future treatment expenses is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.15,000/-** (25,000 – 10,000), which will carry no interest. 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.36,000/-** (Rupees thirty six thousand only) [14,000 + 1,500 + 500 + 5,000 + 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding Rs.15,000/- granted as additional compensation towards future treatment expenses. 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. The disbursement of additional 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 MACA No. 1464 of 2010 -14- in Official Memorandum No.D1-62475/2016 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 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** das