Pauloose v. Karuppaiyya and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** ## **MACA.No.2662 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.994/2005 DATED 19-09-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANT/PETITIONER :** **PAULOSE, S/O.VARGHESE MOLEL HOUSE, NELLIMATTOM P.O., NELLIMATTOM.** **BY ADV. SRI.SOORAJ T.ELENJICKAL** ## **RESPONDENTS/RESPONDENTS :** - **1 KARUPPAIYYA, S/O.PERUMAL 4/26, BAZAR STREET, CHETTIKULAM P.O.,KUNNAM TALUK, PERUMBALLOOR DISTRICT,, PIN-621 104.** - **2 THE NEW INDIA ASSURANCE CO.LTD. REGIONAL OFFICE, KOIMBATHOOR,, TAMIL NADU, PIN-641 018.** - **3 M.P.BABY S/O.PURAVATH MARACHERY PUTHETHU HOUSE,, KUTHUKUZHI P.O., KOTHAMANGALAM,, PIN-686 691.** - **4 THE ORIENTAL INSURANCE CO.LTD. ELINGICAL PLAZA, KOTHAMANGALAM,, PIN-686 991.** **SRI A.A.ZIYAD REHMAN-STANDING COUNSEL - R2 ; SMT K.S.SANTHI ,STANDING COUNSEL FOR R4** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2662 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.994 of 2005 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, 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 14.03.2005, while he was travelling in a goods Autorickshaw bearing registration No.KL-17/8147. At the place of accident, the said autorickshaw was hit by a National Permit lorry bearing registration No.TN-31/A-230 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. The 3[rd] respondent is the owner-cum-driver of the autorickshaw and the 4[th] respondent is its insurer. In the accident, the appellant/ claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 3 remained absent and they were set ex-parte. The 2[nd] respondent **MACA.No.2662 OF 2010** **3** insurer of the lorry filed written statement admitting insurance coverage of the said vehicle; however, denying the negligence alleged against its driver. The insurer contended that since no passengers were permitted to travel in a goods autorickshaw, it has no liability to pay compensation to the appellant/claimant. The insure alleged negligence on the part of the driver of the autorickshaw, who applied sudden break without giving signal. The age, occupation, income, injury, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive and exorbitant. 3. The 4[th] respondent insurer of the autorickshaw filed written statement admitting the insurance coverage of the said vehicle; however, denying the negligence alleged against the 3[rd] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the accident occurred due to the sole negligence on the part of the 1[st] respondent driver of the lorry. 4. Before the Tribunal, Exts.A1 to A11 were marked **MACA.No.2662 OF 2010** **4** and PW1 was examined on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 5. 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 lorry by the 1[st] respondent driver. Since the insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.74,300/-, together with interest at the rate of 9% per annum from the date of application till date of deposit, with proportionate cost and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the respective Standing Counsel for respondents 2 and 4. Since insurance coverage of the **MACA.No.2662 OF 2010** **5** offending vehicle is admitted by the insurer, service of notice on respondents 1 and 3 is dispensed with. 8. 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. 9. 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. ## 10. In **National Insurance Company Ltd. v. Pranay** **MACA.No.2662 OF 2010** **6** **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. 11. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; |Head|Amount allowed| |---|---| |Pain and suffering|Rs.15,000/-| |Loss of earning|Rs.7,500/-| |Loss of amenities|Rs.10,000/-| |Transport to hospital|Rs.1,000/-| |Damage to clothes|Rs.500/-| |Extra nourishment|Rs.4,000/-| |Bystander's expenses|Rs.5,000/-| |Towards medical bills|Rs.26,300/-| |Compensation<br>for<br>further|Rs.5,000/-| **MACA.No.2662 OF 2010** **7** treatment for continuing headache and other difficulties **Total Rs.74,300/-** 12. The accident occurred on 14.03.2005. At the time of accident, the appellant was aged 35 years. The appellant claimed a monthly income of Rs.4,000/- as an Agriculturist. A reading of the impugned award would not show as to whether the Tribunal has fixed the monthly income of the appellant. However, a sum of Rs.7,500/- has been awarded towards loss of earning. 13. 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. **MACA.No.2662 OF 2010** **8** 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. 14. 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 **MACA.No.2662 OF 2010** **9** 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. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2005, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court finds that the monthly income of Rs.4,000/- claimed by the appellant is not on the higher side, which can be taken as his notional monthly income, for the purpose of assessing compensation under various heads. 16. As per the medical records, the appellant sustained fracture left temporal bone with extra dural haematom and pnemocephalus with CSF rhinorrhoea, fracture maxilla (Lt), abrasion right hand, left leg and left face and fracture 2 teeth. Ext.A8 is the wound certificate, which showed injuries of contusion with abrasion over left side of forehead, B/L nasal bleeding and abrasion over right hand. CT Scan **MACA.No.2662 OF 2010** **10** showed fracture left temporal bone, extradural hemorrhage and pneumocephalus. Ext.A9 is the discharge card issued from M.B.M.M.Hospital, Kothamangalam, which showed head injury, fracture left temporal bone, left frontal pneumocephalus, left frontal extradural heamatoma, CSF rhinorrhoea, fracture maxilla and contusion chest. Ext.A10 medical bills are for a sum of Rs.26,293.91/-. 17. Ext.A11 is the certificate issued from M.B.M.M.Hospital, Kothamangalam as per which, due to head injury, the appellant was admitted on 14.03.2005, operated on 15.03.2005 and was discharged on 12.04.2005. The doctor, who treated the appellant was examined as PW1, who deposed that the appellant is having headache and suffering difficulty in word finding. PW1 was not able to say whether the appellant had the difficulty of word finding before the accident. During cross examination, PW1 admitted that the appellant has not taken CT scan, as directed by him. After analysing the evidence of PW1, the Tribunal concluded that the evidence of PW1 is not at all helpful to prove any of the difficulties claimed by the **MACA.No.2662 OF 2010** **11** appellant. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.7,500/-. 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 loss of earning for a period of 4 months at the rate of Rs.4,000/-. Hence, the compensation under the head loss of earning is re-fixed as Rs.16,000/- (4,000 x 4), resulting an additional compensation of **Rs.8,500/-** (16,000 – 7,500). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 29 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.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500 – 1,000). 20. Towards bystander expenses, the Tribunal **MACA.No.2662 OF 2010** **12** awarded a sum of Rs.5,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.4,000/-. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 29 days. 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 these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2005, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.26,300/-, covered by Ext.A10 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. **MACA.No.2662 OF 2010** **13** 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20,000 - 15,000). 24. For further treatment for continuing headache and other difficulties, the Tribunal awarded a sum of Rs.5,000/-. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 25. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. No reliable materials were produced before the Tribunal in order to prove that, the injuries sustained in the accident had resulted in any permanent disability. In the absence of any such materials, 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 **MACA.No.2662 OF 2010** **14** head. 26. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.15,250/-** (Rupees Fifteen thousand two hundred and fifty only) [8,500 + 1,500 + 250 + 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 305 days in filing this appeal, which was condoned vide order dated 30.10.2019 in C.M.Appln.No.3485 of 2010, subject to the condition that in case enhanced compensation is granted, the appellant will not be entitled for interest on 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 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 **MACA.No.2662 OF 2010** **15** clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/23/11