Muhammed Shafeeque v. K. Saidalavi and The New India Assurance 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.1287 OF 2009** **AGAINST THE AWARD IN OPMV 2549/2003 DATED 20-08-2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER IN OP(MV):** **MUHAMMED SHAFEEQUE, S/O.ABDUL LATHEEF, AGED 26 YEARS, A.P.HOUSE, THULAMUTTAM PARAMBA,, MATHOTTAM, P.O.ARAKKINAR, CALICUT.** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **1 K.SAIDALAVI, S/O.HAMZA, KIZHAKKATH HOUSE, PARAPPANANGADI, MALAPPURAM DIST.** **2 THE NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, K.H.BUILDING,, THAZHEPPALAM, TIRUR, MALAPPURAM.** **R1 BY ADV. SRI.P.G.GANAPPAN, STANDING COUNSEL** **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.1287 OF 2009** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2549 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, which is 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 15.08.2003, while he was travelling in an autorikshaw bearing registration No.KL-10/F-80, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the autorikshaw capsized and the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorikshaw by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,51,000/-, under various heads, which was limited to Rs.2,00,000/- for the purpose of payment of court fee. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set exparte. 3. The 2[nd] respondent/insurer filed written statement admitting the insurance coverage of the autorikshaw involved in the accident; however, denying the negligence alleged against the **MACA.No.1287 OF 2009** 3 1[st] respondent. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is excessive. 4. Before the Tribunal, Exts.A1 to A4 were marked on the side of the appellant/claimant. Ext.C1 is the disability certificate, in which no permanent disability has been assessed. 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 autorikshaw by the 1[st] respondent owner-cum-driver. Since insurance coverage of the autorikshaw is not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. 6. Under various heads, the Tribunal awarded a total compensation of Rs.31,500/-, and the 2[nd] respondent insurer was directed to satisfy the award, with interest at the rate of 7% per annum from 23.10.2003, and a cost of Rs.200/-. The 2[nd] respondent insurer was directed to produce a cheque in favour of the appellant, after adjusting the award paid under Section 140 of the Motor Vehicles Act, within 30 days. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this **MACA.No.1287 OF 2009** 4 Court in this appeal. 8. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] respondent/insurer. 9. 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. 10. 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. 11. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex **MACA.No.1287 OF 2009** 5 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. 12. In the instant case, the compensation awarded by the Tribunal under different heads reads thus: |Medical bills|Rs.10,000/-| |---|---| |Incidental charges|Rs.3,000/-| |Pain and sufferings|Rs.13,000/-| |Loss of notional income|Rs.3,000/-| |Loss of amenity|Rs.2,000/-| |Transportation|Rs.500/-| |Total|**Rs.31,500/-**| 13. The accident occurred on 15.8.2003. At the time of accident, the appellant was aged 20 years. He claimed a monthly income of Rs.5,000/- as a Coolie (manual labourer). In the absence of any reliable materials, the Tribunal fixed the monthly **MACA.No.1287 OF 2009** 6 income notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. 14. 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 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. ## 15. In **Syed Sadiq v. Divisional Manager, United India** **MACA.No.1287 OF 2009** 7 **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. 16. 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 refix the monthly income of the appellant notionally as Rs.4,000/-, for the purpose of assessing compensation under different heads. 17. As per Ext.A2 wound certificate, the appellant **MACA.No.1287 OF 2009** 8 sustained fracture to femur and surgery was required. Thereafter bone grafting was also done. He had undergone inpatient treatment for a period of ten days. Ext.A3 is the discharge summary showing the nature of injuries sustained and the treatment the appellant had undergone. 18. Towards medical expenses, the appellant claimed a sum of Rs.28,154/- covered by Ext.A4 series of medical bills. However, the Tribunal limited the compensation under this head as Rs.10,000/- on the ground that Ext.A4 series of medical bills are from a private hospital. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from Ext.A2 wound certificate and Ext.A3 discharge summary, this Court find no reason to deny the appellant, the entire medical expenses covered by Ext.A4 series of medical bills. In the result, the compensation under the head 'medical expenses' is refixed as Rs.28,154/-, resulting an additional compensation of **Rs.18,154/-.** 19. Towards incidental charges, the Tribunal awarded a sum of Rs.3,000/- and a further sum of Rs.500/- towards transportation expenses. Considering the nature of injuries sustained and the treatment the appellant had undergone, as **MACA.No.1287 OF 2009** 9 borne out from medical records, the compensation awarded by the Tribunal under the head 'transportation' is refixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,000/-** . The appellant had undergone inpatient treatment for 10 days. Therefore, the compensation awarded under the head incidental charges is refixed as Rs.3,250/-, i.e., Rs.1,500/- (150x10) towards bystander's expense; Rs.1,000/- (100x10) as extra nourishment, and Rs.750/- towards damage to clothing, resulting an additional compensation of **Rs.250/-** . 20. The Tribunal awarded no amount towards loss of earning. 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 fix the period for loss of earning as 3 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the appellant will be entitled for **Rs.12,000/-** (4,000x3) as compensation under the head loss of earning. 21. Towards pain and suffering, the Tribunal awarded a sum of Rs.13,000/-. 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 **MACA.No.1287 OF 2009** 10 under this head is refixed as Rs.15,000/-, resulting an additional compensation of **Rs.2,000/-** . 22. Ext.C1 disability certificate would show that the appellant has not sustained any permanent disability on account of the injuries sustained in the accident. Therefore, the Tribunal cannot be find fault with in not awarding any compensation under the head disability. In the result, the appellant will be entitled for an additional compensation of **Rs.33,404/-** (Rupees Thirty three thousand four hundred and four only) [18,154+1,000+250+12,000+2000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] 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** jv **MACA.No.1287 OF 2009** 11