NARAYANAN v. SAJESH and P.K. DASAN and ORIENTAL INSURANCE CO. LTD.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** **MACA.No.610 OF 2008** **AGAINST THE AWARD IN O.P.(MV) NO.695/2002 DATED 28-09-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER IN OP(MV):** **NARAYANAN, S/O.NAGU, VALOOPARAMBIL HOUSE, CHENTHURUTHY DESOM, POYYA VILLAGE, POYYA PO, KODUNGALLUR TALUK.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **1 SAJESH, S/O.DASAN, PONNAMMATHARA HOUSE, POOPPATHY. 2 P.K.DASAN, PONNAMMATHARA HOUSE, P.O.POYYA. 3 ORIENTAL INSURANCE CO. LTD., MANAPATT BUILDINGS, NORTH NADA, KODUNGALLUR.P.O.** ## **R3 BY ADV. SRI.N.S.NAJEEB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.610 OF 2008** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.695 of 2002 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 08.01.2002, while he was walking on the side of a public road. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-8/M-4088, ridden by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, 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 accident; however, denying the insurance coverage. Later, the insurer produced a copy of the insurance policy. The insurer denied negligence **MACA.No.610 OF 2008** -3- alleged against the 1[st] respondent rider and contended that the accident occurred due to the negligence of the appellant/claimant. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant and a copy of the insurance policy was marked as Ext.B1. 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 motorcycle by the 1[st] respondent rider. Since insurance coverage of the offending 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.65,300/-, together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost and the insurer was directed to satisfy the award. 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/ **MACA.No.610 OF 2008** -4- claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent was dispensed with, by the order dated 12.11.2019. 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 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. **MACA.No.610 OF 2008** -5- 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 non-violation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount allowed| |---|---|---| |1|Loss of earning|6,000/-| |2|Transportation to hospital|1,000/-| |3|Bystander's expenses|1,300/-| |4|Medical expenses|39,000/-| |5|Pain and suffering|13,000/-| |6|Loss of amenities and discomfort|5,000/-| ||**TOTAL**|**65,300/-**| **MACA.No.610 OF 2008** -6- 11. The accident occurred on 08.01.2002. At the time of accident, the appellant was aged 65 years. The appellant claimed a monthly income of Rs.4,500/- as manual labourer. The appellant has not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,500/-, 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 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 **MACA.No.610 OF 2008** -7- 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 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 **MACA.No.610 OF 2008** -8- the economic conditions prevailing at the time of accident, i.e., during the year 2002, 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.3,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge card. As per Ext.A3, the appellant sustained lacerated wound 2x1 cm over the posterior aspect of left ear, haematoma around the right zygomatic region, tenderness over the zygoma and mandibular head, lacerated wound over the left leg bone deep and skin abrasions over the dorsum of left hand, left medial malleolus, left bid toe. X-ray investigation revealed crack fracture of left tibia and the fracture was visible through the wound. As per Ext.A4 discharge card, the appellant had undergone inpatient treatment at Modern Medical Centre for a period of 13 days and he was diagnosed as a case of Type III open comminuted fracture of left tibia besides other injuries. In Ext.A5 disability certificate, 8% permanent limb disability was assessed. Ext.A5 disability certificate was not proved by examining the doctor **MACA.No.610 OF 2008** -9- concerned. Therefore, the Tribunal did not accept the same for the purpose of awarding compensation under the head permanent disability. Ext.A6 series of medical bills are for a sum of Rs.39,000/-. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.1,500/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, the period fixed by the Tribunal for loss of earning is re-fixed as 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under this head is re-fixed as Rs.17,500/- (3,500 x 5), resulting an additional compensation of **Rs.11,500/-** (17,500 - 6,000). 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 13 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. The accident is of the year 2002. 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.1,500/-, resulting an additional compensation of **MACA.No.610 OF 2008** -10- ## **Rs.500/-** (1,500 - 1,000). 18. Towards bystander expenses the Tribunal awarded a sum of Rs.1,300/- (100 x 13). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,300/- (100 x 13). The accident is of the year 2002. The appellant had undergone inpatient treatment for 13 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. 1,950/- (150 x 13), resulting an additional compensation of **Rs.650/-** (1,950 - 1,300) under this head. The compensation awarded by the Tribunal under the head extra nourishment represents just and reasonable compensation, which requires no enhancement in this appeal. 19. The Tribunal awarded no compensation towards damage to clothing. Considering the fact that the accident is of the year 2002, this Court deem it appropriate to grant a sum of **Rs.750/-** as compensation under this head. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.39,000/-, covered by Ext.A6 series of medical bills. In the impugned award, the Tribunal has stated valid reason **MACA.No.610 OF 2008** -11- for deducting the amount covered by certain bills. In the absence of any reliable 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 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 under the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.2,000/-** (15,000 - 13,000). 22. The Tribunal awarded no amount towards permanent disability. Ext.A5 disability certificate issued by an individual doctor was not proved by examining the doctor concerned. In the absence of any reliable materials to prove permanent disability, the Tribunal did not award any compensation under the head permanent disability. Instead, the Tribunal awarded a sum of Rs.5,000/- under the head loss of amenities. In the absence of any reliable materials to prove permanent disability, the Tribunal was justified in not granting any compensation under the head permanent disability. The **MACA.No.610 OF 2008** -12- compensation awarded by the Tribunal under the head loss of amenities represents just and reasonable compensation, which requires no enhancement in this appeal. 23. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.15,400/-** (Rupees fifteen thousand four hundred only) [11,500 + 500 + 650 + 750 +2,000] 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 and Legal Benefit Fund. The disbursement of the amount to the appellant shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. 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 in Official Memorandum No.D1-62475/2016 dated 07.11.2019. **MACA.No.610 OF 2008** -13- The appellant shall submit 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** bpr