P. Sankaran S/o Gopal—Appellant v. V.P. Ibrahim, Kunhabdulla and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** ## **MACA.No.2066 OF 2008** **AGAINST THE AWARD IN OP(MV)No.2934/2001 DATED 14-11-2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **P.SANKARAN S/O.GOPALAN, PANDARAKANDY HOUSE, P.O.PUTHIYANGADI,, ELATHUR AMSOM DESOM, PUTHIYAPPAL, KOZHIKODE.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENTS/RESPONDENTS:** **1 V.P.IBRAHIM AGE AND FATHER'S NAME NOT KNOWN, LAILA MANZIL, SIDHA SAMAJAM, VATAKARA 673103. 2 KUNHABDULLA S/O.AJJUTTY AKKAM VEETTIL, P.O.THIKKODI, KOZHIKODE DISTRICT 673 529. 3 UNITED INDIA INSURANCE CO.LTD. KALLINGAL BUILDING, MAIN ROAD, VATAKARA 673 103. R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSURANCE CO. LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2066 of 2008 -:2:- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2934 of 2001 on the file of the Principal 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 10.11.2000, while he was driving an autorickshaw. At the place of accident, the autorickshaw was hit by a bus bearing registration No.KL-10/B-986 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.40,050/- under various heads, which was limited to Rs.30,000/- for the purpose of payment of court fee. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver of the bus did not file any written statement. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the bus involved in the accident; MACA No.2066 of 2008 -:3:- however, denying negligence alleged against the 2[nd] respondent driver. 3. Before the Tribunal, Exts.A1 to A4 were marked on the side of the 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 bus by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Considering the nature of injuries sustained and the treatment the claimant had undergone, the Tribunal awarded a consolidated sum of Rs.6,000/- as compensation towards probable loss of income, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 03.10.2001 till realisation, with a cost of Rs.150/- and the 3[rd] respondent 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. MACA No.2066 of 2008 -:4:- 6. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. 7. The learned Standing Counsel for the 3[rd] respondent insurer raised the question of maintainability of this appeal, in view the provisions under sub-section (2) of Section 173 of the Motor Vehicles Act. 8. Section 173 of the Motor Vehicles Act deals with appeals. As per sub-section (1) of Section 173, subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court. As per the first proviso to sub-section (1), no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court. As per the second proviso to sub-section (1), the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was MACA No.2066 of 2008 -:5:- prevented by sufficient cause from preferring the appeal in time. As per sub-section (1) of Section 173, no appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. 9. In **Varghese Devassia v. Jossy Varghese [2019 (1) KLT 769]** a Division Bench of this Court held that the Motor Accidents Claims Tribunals constituted under the Motor Vehicles Act as also the High Court exercising appellate jurisdiction have a duty to award just and fair compensation having regard to the well settled principles regarding assessment of damages, if necessary by ignoring the claim made in the application for compensation, If that be so, by necessary implication it will have to be held that the operation of sub-section (2) of Section 173 of the Act can have no application to appeals filed by claimants seeking enhancement of the compensation awarded by the Tribunal. In other words, the restriction contained in sub-section (2) of Section 173 of the Act can have application only where the award passed by the Motor Accidents Claims Tribunal is under challenge by the person held liable by the Tribunal to pay the amount awarded as compensation. MACA No.2066 of 2008 -:6:- 10. In the instant case, the claimant is before this Court, in this appeal filed under Section 173 of the Motor Vehicles Act, dissatisfied with the quantum of compensation awarded by the Tribunal. Therefore, the restriction imposed in sub-section (2) of Section 173 of the Act have no application to the instant appeal filed by claimant seeking enhancement of the compensation awarded by the Tribunal, as held by the Division Bench in **Varghese Devassia** . In the result, the question relating to the maintainability of this appeal, in view of the restriction imposed in sub-section (2) of Section 173 of the Act, is answered against the 3[rd] respondent insurer. 11. 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 12. 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 MACA No.2066 of 2008 -:7:- 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. 13. 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. 14. In the instant case, the compensation claimed before the Tribunal, under various heads, reads thus; MACA No.2066 of 2008 -:8:- ||Head of claim|Amount claimed<br>(in Rs.)| |---|---|---| |1|Loss of earning for 3 months|13,500/-| |2|Transport to hospital|300/-| |3|Extra nourishment|2,250/-| |4|Medical expenses|750/-| |5|Damage to clothing and articles|250/-| |6|Pain and suffering|12,500/-| |7|Loss of earning power|12,500/-| ||Total claim<br>Claim limited to|Rs.42,050/-<br>Rs.30,000/-| 15. The accident occurred on 10.11.2000. At the time of accident, the appellant was aged 40 years. The appellant claimed a monthly income of Rs.4,500/- as autorickshaw driver. The accident occurred while the appellant was driving the autorickshaw. The driving licence of the appellant was not placed on record. 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. Instead of fixing the notional monthly income of the appellant and awarding compensation under the permissible heads, the Tribunal awarded a consolidated sum of Rs.6,000/- as compensation towards probable loss of income. ## 16. In **Ramachandrappa v. Manager, Royal** MACA No.2066 of 2008 -:9:- ## **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. 17. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of MACA No.2066 of 2008 -:10:- 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. 18. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2000, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and also the fact that the accident occurred while the appellant was driving an autorickshaw, this Court deem it appropriate to fix the monthly income of the appellant notionally as Rs.3,000/-, for the purpose of assessing compensation under MACA No.2066 of 2008 -:11:- ## various heads. 19. The document marked as Ext.A2 is the wound certificate and Ext.A4 is the reference card. As per Ext.A2, in the accident, the appellant sustained lacerated wound 2x0.5cm on the right side of head and abrasion on the right shoulder. He complained of chest pain. After investigation it was confirmed that there is no fracture or hemothorax. The appellant had undergone inpatient treatment for a period of 3 days. Ext.A3 series of medical bills are for a sum of Rs.450/-. 20. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** the Apex Court held that, the provisions of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The Court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its MACA No.2066 of 2008 -:12:- consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: ## Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. - (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: - (a) Loss of earning during the period of treatment; - (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. ## - Non pecuniary damages (General damages) - (iv) Damages for pain, suffering and trauma as a consequence of the injuries. - (v) Loss of amenities (and/or loss of prospects of marriage). - (vi) Loss of expectation of life (shortening of normal longevity). MACA No.2066 of 2008 -:13:- In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 21. Towards loss of earning, the appellant claimed a sum of Rs.13,500/-, at the rate of Rs.4,500/- for a period of 3 months. As evident from medical records, in the accident, the appellant sustained only minor injuries. He sustained lacerated wound 2x0.5cm on the right side of head and abrasion on the right shoulder. Though he complained of chest pain, after investigation it was confirmed that there is no fracture or hemothorax. The appellant had undergone inpatient treatment only for a period of 3 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, he can be granted loss earning for a period of 10 days. Since the notional monthly income of the appellant is fixed as Rs.3,000/-, MACA No.2066 of 2008 -:14:- he can be granted a sum of **Rs.1,000/-** (3,000 x 1/3) as compensation towards loss of earning. 22. Towards transportation expenses the appellant claimed a sum of Rs.300/-. The accident is of the year 2000. The appellant had undergone inpatient treatment for 3 days at Medical College Hospital, Kozhikode. The appellant is a resident of Puthiyangadi, which is around 6kms. away from Kozhikode City. The accident occurred at Athanikkkal, around 1km away from Puthiyangadi, while the appellant was proceeding towards Kozhikode City. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the appellant can be granted a sum of **Rs.1,000/-** towards transportation expenses. 23. The accident is of the year 2000 and the appellant had undergone inpatient treatment for 3 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, he can be granted a sum of **Rs.450/-** (150 x 3) towards bystander expenses; a sum of **Rs.300/-** (100 x 3) towards extra nourishment; and a sum of **Rs.750/-** towards damage to MACA No.2066 of 2008 -:15:- clothing. 24. Ext.A3 series of medical bills are for a sum of Rs.450/-. Therefore, the appellant can be granted a sum of **Rs.450/-** towards treatment expenses. 25. Towards pain and suffering, the appellant claimed a sum of Rs.12,500/-. As already noticed, in the accident, the appellant sustained only minor injuries, i.e., lacerated wound 2x0.5cm on the right side of head and abrasion on the right shoulder. Considering the nature of injuries, the appellant can be granted a sum of **Rs.2,000/-** towards pain and suffering. 26. Towards loss of earning power (loss of future earning) the appellant claimed a sum of Rs.12,500/-. Since the appellant sustained only minor injuries he is not entitled for payment of any compensation under the head loss of future earning. 27. Therefore, the total compensation that can be granted to the appellant/claimant under the permissible heads comes to **Rs.5,950/-** [1,000 + 1,000 + 450 + 300 + 750 + 450 + 2,000], as against a consolidated sum of Rs.6,000/- awarded by the Tribunal. In the result the appellant, who sustained only minor MACA No.2066 of 2008 -:16:- injuries, is not be entitled for any enhancement of the compensation awarded by the Tribunal. This appeal fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K.NARENDRAN, JUDGE** vps