NIYAS V E v. Divisional Manager, New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 30TH DAY OF SEPTEMBER 2019 / 8TH ASWINA, 1941** ## **MACA.No.3734 OF 2019** **AGAINST THE AWARD IN OPMV 930/2016 DATED 14-05-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT:** **NIYAS.V.E, AGED 37 YEARS, S/O.ESSA, VILANGUPARA, ERUMELY, VAZHAKKALA, KANJIRAPPALLY, KOTTAYAM.** **BY ADV. SRI.P.M.JOSHI** ## **RESPONDENT:** **THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAYAM, KOTTAYAM-1.** **SRI A.A. ZIYAD REHMAN- SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.3734/19 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.930 of 2016 on the file of the Motor Accidents Claims Tribunal, Kottayam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident, which occurred on 12.02.2016, while he was travelling as a pillion rider on a motorbike bearing registration No.KL-05/V-1945. At the place of accident, the motorcycle was hit by a pickup van bearing registration No.TN60/V-463, driven by the 1[st] respondent and owned by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, appellant/claimant sustained injuries, who had undergone in-patient treatment for a period of three days from 12.02.2016 to 15.02.2016 at the Government Hospital, Kanjirappally. Alleging that the accident occurred due to the rash and negligent driving of the pickup van by its driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the driver and owner of the offending vehicle remained absent and they were set ex-parte. 3 M.A.C.A.No.3734/19 The 3[rd] respondent insurer filed written statement admitting insurance coverage of the said vehicle, at the time of accident; however, denying negligence alleged against its driver. The insurer contended that the compensation claimed by the appellant/claimant is on the higher side. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. 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 driving of the offending vehicle by its driver. Since insurance coverage of the said 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.54,660/- and the insurer was directed to satisfy the award, together with interest at the rate of 9% per annum from the date of petition, i.e., 15.07.2016 till date of deposit, with proportionate cost. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. M.A.C.A.No.3734/19 4 6. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the respondent/insurer. 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. 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 M.A.C.A.No.3734/19 5 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**<br>**Claimed**|**Amount**<br>**Awarded**|**Basic vital**<br>**details in nut**<br>**shell**| |---|---|---|---|---| |1.|Loss of earnings|45,000|7,000|For 1 month @<br>7,000/-per month<br>₹| |2.|Partial loss of<br>earnings|3,000|NA|Not supported by<br>anyevidence| |3.|Transport to<br>hospital|5,000|1,000|Considering<br>hospitalization| |4.|Extra nourishment|5,000|1,800|Treated<br>as<br>an<br>inpatient for 3 days| |5.|Damage to<br>clothing and<br>articles|1,000|1,000|Moderate rate| |6.|Bystander<br>expenses|6,000|1,800|600/- x 3 days<br>₹| |7.|Medical expenses|25,000|2,060|Relying on Ext.A6<br>series| M.A.C.A.No.3734/19 6 |8.|Pain and sufferings|50,000|25,000|In view of the injury<br>sustained and teeth<br>lost.| |---|---|---|---|---| |9.|Permanent<br>disability<br>Loss of earning<br>power|1,00,000<br>1,00,000|NA|No<br>disability<br>certificate| |10|Loss of amenities|50,000|15,000|| |**TOTAL**<br>Claim is limited to||3,90,000<br>**1,50,000**|**54,660**|| 11. The accident occurred on 12.02.2016. The appellant claimed a monthly income of Rs.15,000/- as taxi driver. 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.7,000/-, 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 7 M.A.C.A.No.3734/19 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. 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 8 M.A.C.A.No.3734/19 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 the economic conditions prevailing at the time of accident, i.e., during the year 2016, 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.10,500/-, for the purpose of assessing compensation under various heads. 15. As per Ext.A4 accident register-cum-wound certificate issued from the General Hospital, Kanjirappally the appellant sustained incised wound eyebrow, abrasion on chin, left knee and below left eyebrow and loss of teeth. As per Ext.A5 discharge card, he had undergone in-patient treatment at the Government Hospital, Kanjirappally from 12.02.2016 to 15.02.2016. As per Ext.A5, he sustained contusion of back and Ellis III dental fracture. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.7,000/-, for a period of one month. Considering the nature 9 M.A.C.A.No.3734/19 of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of one month fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is refixed notionally as Rs.10,500/-, the compensation under the head loss of earning is re-fixed as Rs.10,500/-, resulting an additional compensation of **Rs.3,500/-** (10,500 – 7,000). 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 3 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. 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.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000) under this head. 18. Towards bystander expenses, the Tribunal awarded a sum of Rs.1,800/- (600 x 3). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2016 and the appellant had undergone inpatient treatment for 3 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as M.A.C.A.No.3734/19 10 borne out from medical records, the compensation awarded by the Tribunal under these heads cannot be said to be on the lower side, which requires no enhancement in this appeal. 19. Towards medical expenses, the Tribunal awarded a sum of Rs.2,060/-, covered by Ext.A6 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. 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. 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. 21. Towards loss of amenities, the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained by the appellant, 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. M.A.C.A.No.3734/19 11 22. Considering the fact that the injuries sustained in the accident had resulted in loss of teeth, the appellant is granted a sum of **Rs.5000/-** as compensation for loss of teeth. 23. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.9,000/-** (Rupees nine thousand only) [3,500 + 500 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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 the amount to the appellant/claimant shall be in terms of 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** DG ## **JUDGE**