National Insurance Co. Ltd. v. T.A. Shukoor and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** ## **MACA.No.1094 OF 2006** **AGAINST THE AWARD IN O.P.(MV) NO.352/2000 DATED 10-08-2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA, WAYANAD.** ## **APPELLANT/3RD RESPONDENT:** **THE NATIONAL INSURANCE CO.LTD., PAUL SONS TOWER, G.H.ROAD,CALICUT REPRESENTED BY ADMINISTRATIVE OFFICER, NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, MTPD, KOCHI.** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENTS/CLAIMANT & RESPONDENTS 1,2,4,5 & 6:** |**1**|**T.A.SHUKOOR,**| |---|---| ||**S/O.ALI,**| ||**THANKAYATHAANKANDI HOUSE,**| ||**P.O.VARKEY, S.BATHERY TALUK,**| ||**WAYANAD DISTRICT.**| |**2**|**K.V.SUNNY,**| ||**KANDAMATHURITHIYIL HOUSE,**| ||**POST PADINCHIRA, PULPALLY,**| ||**S.BATHERY TALUK.**| |**3**|**SHAJU,**| ||**S/O.KUNHUKOCHI,**| ||**CONNUKALLERI HOUSE,**| ||**THAZHEANGADI, P.O.PULPALLY,**| ||**S.BATHERY TALUK.**| |**4**|**JOSEPH MATHEW,**| ||**S/O.JOSEPH,**| ||**KOCHIKUNNEL HOUSE,**| ||**K.S.H.B. COLONY, MYSORE ROAD,**| ||**S.BATHERY POST AND TALUK.**| **MACA.No.1094 OF 2006** -2- *** 5 ABDUL MUNEER, W/O.AMBU, PUTHANKADAVATH HOUSE, P.O.VARKEY, S.BATHERY TALUK AND POST. (DELETED)** ***** **(RESPONDENT NO. 5 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 18/10/19 IN I.A. NO.1/19 IN MACA NO.1094/06)** **6 THE UNITED INDIA INSURANCE COMPANY LTD., CALICUT BRANCH, POST CALICUT.** **R1 BY ADV.SRI.GEORGE VARGHESE KIZHAKKAMBALAM R1 BY ADV.SRI.V.RAJENDRAN PERUMBAVOOR R2&R3 BY ADV.SRI.GEORGE THOMAS MEVADA R6 BY ADV.SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1094 OF 2006** -3- ## **JUDGMENT** The appellant is the 3[rd] respondent insurer in O.P(MV) No.352 of 2000 on the file of the Motor Accidents Claims Tribunal, Wayanad, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the 1[st] respondent claimant, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 31.08.1998, while he was travelling in a jeep bearing registration No.KL-12/A1677 owned by the 4[th] respondent, driven by the 5[th] respondent and insured with the 6[th] respondent. At the place of accident, the jeep was hit by a bus bearing registration No.KL-10/D-8280 owned by the 2[nd] respondent, driven by the 3[rd] respondent and insured with the appellant. In the accident, the claimant and other passengers in the jeep sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, respondents 4 and 5 remained absent and they were set ex-parte. The owner and the driver **MACA.No.1094 OF 2006** -4- of the bus filed joint written statement admitting ownership of the vehicle and also involvement of the vehicle in the accident. They contended that the accident occurred due to the rash and negligent driving of jeep by its driver. 3. The appellant insurer of the bus filed written statement admitting insurance coverage of the said vehicle; however, denying negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and negligent driving of jeep by its driver. The insurer disputed the amount of compensation claimed and also its liability. 4. The 6[th] respondent insurer of the jeep filed written statement admitting insurance coverage of the said vehicle; however, denying negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and negligent driving of the bus by its driver. 5. Before the Tribunal, Exts.A1 and A2 were marked on the side of the claimant and he was examined as PW1. Respondents have not chosen to adduce any oral or documentary evidence. 6. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident **MACA.No.1094 OF 2006** -5- occurred due to the rash and negligent driving of bus by its driver. Since the said vehicle was covered by a valid insurance policy, the appellant insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.45,000/-, together with interest at the rate of 6% per annum from the date of petition till payment, with proportionate cost. 7. The appellant insurer has filed this appeal, contending that the compensation awarded by the Tribunal under various heads are on the higher side. 8. Heard the learned Standing Counsel for the appellant insurer, the learned counsel for the 1[st] respondent and also Smt.Deepa George, the learned Standing Counsel for the 6[th] respondent insurer. 9. The issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation. 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 **MACA.No.1094 OF 2006** -6- 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 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 **MACA.No.1094 OF 2006** -7- 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 various heads reads thus; |Sl.<br>No.|Head of claim|Amount allowed| |---|---|---| |1|Loss of earning|Rs. 420.00| |2|Transport charges|Rs. 1,500.00| |3|Extra nourishment|Rs. 1,000.00| |4|Damage to clothing|Rs. 500.00| |5|Medical expenses|Rs. 4,580.00| |6|Loss of amenities|Rs. 9,500.00| |7|Bystander expenses|Rs. 1,500.00| |8|Pain and suffering|Rs. 10,000.00| |9|Injury|Rs. 8,000.00| |10|Future treatment|Rs. 8,000.00| ||**Total**|**Rs. 45,000.00**| 13. The accident occurred on 31.08.1998. At the time of accident, the 1[st] respondent claimant was aged 23 years. He claimed a monthly income of Rs.3,000/- as coolie (manual labourer). The claimant was examined as PW1. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,800/-, for the purpose of assessing compensation under various heads. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **MACA.No.1094 OF 2006** -8- **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 Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , **MACA.No.1094 OF 2006** -9- 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 1998, 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 1[st] respondent claimant notionally as Rs.1,500/-, for the purpose of assessing compensation under various heads. 17. The document marked as Ext.A2 is the wound **MACA.No.1094 OF 2006** -10- certificate. As evident from Ext.A2 wound certificate, in the accident, the 1[st] respondent sustained fracture of nasal bone; lacerated wound 1.5 cm x 0.5 cm x 0.5 cm right eyebrow; and tenderness of nose. Other than the oral testimony of PW1, no materials were placed before the Tribunal to prove that he had undergone inpatient treatment for a period of 7 days. Ext.A2 accident register cum wound certificate would show that the claimant was brought to Medical College Hospital on 31.08.1998 at 3.05 pm with the aforesaid injuries in a motor accident involving a jeep and a bus. 18. Towards loss of earning, the Tribunal granted a sum of Rs.420/- for a period of 7 days, taking the notional monthly income of the claimant as Rs.1,800/-. No materials were placed before the Tribunal to prove inpatient treatment, the 1[st] respondent claimant had undergone, on account of the injuries sustained in the accident. Considering the nature of injuries sustained, the 1[st] respondent claimant can be granted loss of earning for a period of 15 days. Since the monthly income of the claimant is re-fixed as Rs.1,500/-, he is granted a sum of Rs.750/- under this head, resulting an additional compensation of **Rs.330/-** (750 - 420). **MACA.No.1094 OF 2006** -11- 19. Towards transportation charges, the Tribunal awarded a sum of Rs.1,500/-. The accident is of the year 1998. The compensation awarded by the Tribunal under this head cannot be said to be on the higher side, which requires no interference in this appeal. 20. Towards extra nourishment, the Tribunal awarded a sum of Rs.1,000/-. The Tribunal awarded a further sum of Rs.1,500/- under the head bystander expenses. Accepting the oral testimony of claimant as PW1, he can be granted bystander expenses and extra nourishment for a period of 7 days. Since the accident is of the year 1998, the compensation under the head bystander expenses is re-fixed as Rs.1,050/- (150 x 7) and that under the head extra nourishment is re-fixed as Rs.700/- (100 x 7), resulting an **excess payment** of **Rs.750/-** [(1,000 - 700) + (1,500 - 1,050)]. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.4,580/-. No medical bills were placed before the Tribunal to prove medical expenses. The claimant had undergone treatment at Medical College Hospital, Kozhikode where free treatment is provided for persons in lower income **MACA.No.1094 OF 2006** -12- group. Considering the said fact, in the absence of any medical bills, the compensation under this head is scaled down to Rs.2,000/-, resulting an **excess payment** of **Rs.2,580/-** (4,580 - 2,000). 22. Towards loss of amenities, the Tribunal awarded a sum of Rs.9,500/-. No materials were produced before the Tribunal to show that the injuries sustained by the claimant, as evidenced by Ext.A2 wound certificate had resulted in any permanent disability, justifying award of compensation under the head loss of amenities. Therefore, the 1[st] respondent claimant is not entitled for any compensation under the head loss of amenities, resulting another **excess payment** of **Rs.9,500/-** . 23. For pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained, a sum of Rs.7,500/- can be granted as just and reasonable compensation under this head. Therefore, the compensation under this head is scaled down to Rs.7,500/-, resulting an **excess payment** of **Rs.2,500/-** (10,000 - 7,500). 24. The Tribunal awarded a sum of Rs.8,000/- under the head “injury”, which is not a permissible head while **MACA.No.1094 OF 2006** -13- awarding compensation for the injuries sustained in a motor accident. Considering the nature of injuries sustained, the 1[st] respondent claimant has been granted compensation under the head pain and suffering. Therefore, the claimant is not entitled for any compensation under the head “injury”, resulting another **excess payment** of **Rs.8,000/-** . 25. Towards future treatment, the Tribunal awarded a sum of Rs.8,000/-. Considering the nature of injuries sustained, the 1[st] respondent claimant is not entitled for payment of any compensation under the head future treatment, resulting an **excess payment** of **Rs.8,000/-** . 26. In the result, the total compensation awarded by the Tribunal in O.P.(MV) No.352 of 2000 is scaled down to **Rs.14,000/-** (Rupees fourteen thousand only) [45,000 - (750 + 2,580 + 9,500 + 2,500 + 8,000 + 8,000) + 330], which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The appellant insurer shall satisfy the balance compensation, in excess of the statutory deposit, which was ordered to be disbursed to the 1[st] respondent claimant, vide order dated 05.06.2013, together with interest, within a period of two months from the date of receipt of a **MACA.No.1094 OF 2006** -14- 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 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. 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