Noufal v Jobi George and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** ## **MACA.No.774 OF 2010** **AGAINST THE AWARD IN O.P.(MV) NO.1292/2003 DATED 29-04-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **NOUFAL, S/O.AMMED KOYA, CHEEKILOD, PUZHAM KUNNUMMAL HOUSE, KAITHAPOYIL P.O., THAMARASSERY VIA, KOZHIKODE.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** **1 JOBI GEORGE, PALLIKUNNUMMAL, NOOVAMTHODU P.O., PUTHUPPADI. 2 UNITED INDIA INSURANCE CO.LTD., VELLIMANNA BUILDING, THAMARASSERY, KOZHIKODE. R2 BY SRI.P.K.MANOJKUMAR,STANDING COUNSEL, UNITED INDIA INSURANCE CO. LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.774 of 2010 -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.1292 of 2003 on the file of the Motor Accidents Claims Tribunal, Kozhikode, 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 14.04.2002, while he was travelling in an autorickshaw bearing registration No.KL-11/K-8258 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the autorickshaw capsized and the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the 2[nd] respondent insurer filed written statement admitting insurance coverage of the autorickshaw involved in the accident; however, apprehending collusion between the appellant and the 1[st] respondent. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer MACA No.774 of 2010 -3- contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 and A2 were marked on the side of the appellant/claimant and the disability certificate issued by the Medical Board was marked as Ext.C1. The respondents have not chosen to adduce any oral or documentary evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] 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.15,500/-, together with interest at the rate of 7% per annum from the date of petition, i.e., 03.06.2003 till realisation, 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 MACA No.774 of 2010 -4- appellant/claimant and also the learned Standing Counsel for the 2[nd] 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** MACA No.774 of 2010 -5- **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 nonviolation 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 awarded<br>(in rupees)| |---|---|---| |1|Medical treatment|Rs. 750/-| |2|Incidental charges|Rs. 500/-| |3|Pain and suffering|Rs. 6,000/-| |4|Disability|Rs. 6,000/-| |5|Loss of notional income|Rs. 2,000/-| |6|Transportation|Rs. 250/-| ||**TOTAL**|**Rs. 15,500/-**| 11. The accident occurred on 14.04.2002. At the time MACA No.774 of 2010 -6- of accident, the appellant was aged 18 years. He claimed a monthly income of Rs.4,500/- as a coolie (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.1,250/-, 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 MACA No.774 of 2010 -7- 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 monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his MACA No.774 of 2010 -8- 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 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.A2 is the wound certificate. In the accident, the appellant sustained distal humerus shaft fracture (Rt.). On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 26 days. 16. The document marked as Ext.C1 is the disability certificate issued by the Medical Board, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 4%. In Ext.C1, it is certified that there is no occupational disability. MACA No.774 of 2010 -9- 17. Towards loss of earning, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court deem it appropriate to grant loss of earning for a period of 4 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.14,000/(3,500 x 4), resulting an additional compensation of **Rs.12,000/-** (14,000 - 2,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 26 days. The accident is of the year 2002. Towards transportation to hospital, the Tribunal awarded a sum of Rs.250/-. 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.2,000/-, resulting an additional compensation of **Rs.1,750/-** (2,000 - 250). 19. The Tribunal awarded a sum of Rs.500/- under the head incidental charges. The accident is of the year 2002 and MACA No.774 of 2010 -10- the appellant had undergone inpatient treatment for 26 days. 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 grant a sum of Rs.3,900/- (150 x 26) under the head bystander expenses and a further sum of Rs.2,600/- (100 x 26) under the head extra nourishment. Deducting Rs.500/- awarded by the Tribunal under the head incidental charges, the appellant will be entitled for an additional compensation of **Rs.6,000/-** [(3,900 + 2,600) – 500] under the above heads. 20. 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/-** . 21. Towards medical expenses, the Tribunal awarded a sum of Rs.750/-. In the absence of any medical bills, 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. 22. As compensation towards pain and suffering, the MACA No.774 of 2010 -11- Tribunal awarded a sum of Rs.6,000/-. 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.10,000/-, resulting an additional compensation of **Rs.4,000/-** (10,000 - 6,000). 23. Towards disability compensation, the Tribunal awarded a consolidated amount of Rs.6,000/-. In Ext.C1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 4%. However, in Ext.C1 it is certified that the appellant is having no occupational disability. Having considered the nature of injuries sustained and the permanent disability noted in Ext.C1, this Court deem it appropriate to re-fix the compensation under this head as Rs.10,000/-, resulting an additional compensation of **Rs.4,000/-** (10,000 - 6,000). 24. The Tribunal awarded no amount towards loss of amenities. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries MACA No.774 of 2010 -12- sustained in the accident, is assessed as 4%. Considering the nature of injuries sustained and 4% permanent disability on account of those injuries, as assessed in Ext.C1 disability certificate, this Court deem it appropriate to grant a sum of **Rs.5,000/-** under this head. 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.33,500/-** (Rupees thirty three thousand and five hundred only) [12,000 + 1,750 + 6,000 + 750 + 4,000 + 4,000 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 214 days in filing this appeal, which was condoned by the order dated 04.12.2019, subject to the condition that in case enhanced compensation is awarded, the appellant shall not be entitled for interest for the said amount, for the period of delay. 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 MACA No.774 of 2010 -13- 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 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** bpr