Prema v. M. Abdulla 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.1625 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.414/2001 DATED 04-11-2009 OF IST ADDITIONAL M.A.C.T, KOZHIKODE** ## **APPELLANT/CLAIMANT :** **PREMA,W/O.CHANDRAN, AGED 50 YEARS SANTHI NIVAS, POONAR VEETTIL HOUSE,, ARAKINAR.P.O., KOZHIKODE.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENTS/RESPONDENTS :** - **1 M.ABDULLA,S/O.MAMMU,MUPPATHADAM OLIKKATT HOUSE, HOUSE NO.309/03 ELUKARA,, MUPPATHADAM, P.O.ALWAYE, PIN-683 101., (OWNER OF THE MINI LORRY NO.KL-7/N-6933)** - **2 THE ORIENTAL INSURANCE COMPANY LTD. BRANCH OFFICE, P M A BUILDING, P.O.ALWAYE,, PIN-683 101., (INSURER OF THE MINI LORRY NO.KL-7/N-6933)** - **3 K.MOIDEEN S/O.MUHAMMED KURIKKAL KALLIYANTHODI HOUSE, MAKKERI PARAMBA,, P.O.MALAPPURAM, PIN-676 505.** - **4 UNITED INDIA INSURANCE COMPANY LTD. II FLOOR, GREEN TOWER, CALICUT, PIN-673 001., (INSURER OF THE BUS NO.KEE 9891)** - **5 M.MUHAMMED ASHRAF S/O.MUHAMMED HAJI KAYILAKUMAM HOUSE, P.O.MONGAM, MALAPPURAM,, PIN-673 642., (REAL OWNER OF THE BUS NO.KEE 9891) R1, R4 BY ADV. SMT.K.A.AKHILA R1 BY ADV. SRI.N.S.MOHAMMED USMAN** **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.1625 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.414 of 2001 on the file of the 1[st] Additional 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 her in a motor accident, which occurred on 13.11.2000, while she was travelling in a bus bearing registration No.KEE/9891, owned by the 5[th] respondent and insured with the 4[th] respondent. At the place of accident, the bus was hit by a Mini lorry bearing registration No.KL-7/N-6933 owned by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of mini lorry by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-, under various heads. 2. Before the Tribunal, the 2[nd] respondent insurer of the mini lorry filed written statement admitting insurance coverage of the said vehicle. The 4[th] respondent insurer of **MACA.No.1625 OF 2010** **3** the bus also filed written statement admitting the insurance coverage of the bus. Both insurers denied negligence alleged against the respective drivers. 3. Before the Tribunal, the claim petition was tried along with O.P(MV)No.1053 of 2001, arising out of the very same accident. Exts.A1 to A6 were marked on the side of the claimants. On the side of the respondents, Exts.B1 and B2 were marked. The case sheet issued from the Medical College Hospital, Kozhikode is marked as Ext.X1. 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 negligence on the part of drivers of both the vehicles. Since insurance coverage of both the vehicles is admitted, the respective insurers were held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.54,203/-, together with interest at the rate of 6% per annum from the date of petition till the date of realisation, with **MACA.No.1625 OF 2010** **4** proportionate cost, and respondents 2 and 4, who are the insurers of the respective vehicles, were 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 appellant/ claimant and also the respective Standing Counsel for respondents 2 and 4. 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 **MACA.No.1625 OF 2010** **5** 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 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. **MACA.No.1625 OF 2010** **6** ## 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Head|Amount awarded<br>(Rs.)| |---|---| |Loss of earning|12,000/-| |Transportation|500/-| |Damage to clothing|500/-| |Extra nourishment|2,500/-| |Medical expenses|5,803/-| |Bystander expenses|6,900/-| |Loss of amenities|6,000/-| |Pain and suffering|20,000/-| |**Total**|**54,203/-**| 11. The accident occurred on 13.11.2000. At the time of accident, the appellant was aged 42 years. The appellant claimed a monthly income of Rs.5,000/- as a Tailor. 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.2,000/-, for the purpose of assessing compensation under various heads. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** **MACA.No.1625 OF 2010** **7** **[(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. ## 13. In **Syed Sadiq v. Divisional Manager, United** **MACA.No.1625 OF 2010** **8** **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 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 2000 and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it **MACA.No.1625 OF 2010** **9** appropriate to re-fix the monthly income of the appellant notionally as Rs.2,750/-, (since the accident occurred in November 2000) for the purpose of assessing compensation under various heads. 15. Ext.A2 is the wound certificate and Ext.A3 series are reference cards. Ext.A4 is the referral OP ticket. Ext.A5 series are medical bills for a sum of Rs.5,803/-. As per medical records, the appellant had sustained communited compound Type III B fracture over left leg. She had undergone inpatient treatment for a period of 50 days from 13.11.2000 to 02.01.2001 and a further period of 19 days from 05.03.2001 to 24.03.2001. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.2,000/- per month for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is re-fixed as 8 months. Since the monthly income of the appellant is re-fixed notionally as Rs.2,750/-, the compensation under **MACA.No.1625 OF 2010** **10** the head loss of earning is re-fixed as Rs.22,000/- (2,750 x 8), resulting an additional compensation of **Rs.10,000/-** (22,000 – 12,000). 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 69 days during different spells. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. 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 refixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,500/-** (2,000 - 500) under this head. 18. Towards bystander expenses the Tribunal awarded a sum of Rs.6,900/- (100 x 69). Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,500/-. The accident is of the year 2000 and the appellant had undergone inpatient treatment for 69 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head **MACA.No.1625 OF 2010** **11** bystander expenses is re-fixed as Rs.10,350/- (150 x 69), resulting an additional compensation of **Rs.3,450/-** (10,350 – 6,900). The compensation under the head extra nourishment is re-fixed as Rs.6,900/- (100 x 69), resulting an additional compensation of **Rs.4,400/-** (6,900 – 2,500). 19. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2000, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.5,803/-, covered by Ext.A5 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. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of injuries sustained and the treatment the **MACA.No.1625 OF 2010** **12** 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. 22. Towards loss of amenities, the Tribunal awarded a sum of Rs.6,000/-. No disability certificate was produced before the Tribunal to prove any permanent disability. Considering the nature of injuries sustained and the treatment the appellant had undergone for a considerable long period, the compensation awarded by the Tribunal under this head re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.4,000/-** (10,000 – 6,000) under this head. 23. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.23,600/-** (Rupees Twenty three thousand and six hundred only) [10,000 + 1,500 + 3,450 + 4,400 + 250 + 4,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. **MACA.No.1625 OF 2010** **13** Respondents 2 and 4 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 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