Radhamani v. Sarath B. Joshi and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941** ## **MACA.No.3679 OF 2019** **AGAINST THE AWARD IN OPMV 1129/2016 DATED 29-01-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/S:** **RADHAMANI AGED 51 YEARS D/O. RAMAKRISHNAN, KOLLATHETH HOUSE, MANALI, CHUNGATHARA POST, THACHANGODE, EDAKKARA, CHUNGATHARA AMSOM, MALAPPURAM DISTRICT-679 334 BY ADV. SRI.K.VIDYASAGAR** ## **RESPONDENT/S:** |**1**|**SARATH B.JOSHY, S/O. B.N.JOSHI,**| |---|---| ||**4/28(10/42),BLAYIL HOUSE KALADY POST, MATTUR,**| ||**ERNAKULAM DISTRICT-683 574**| |**2**|**NATIONAL INSURANCE COMPANY LIMITED,**| ||**PALLIKKAL INSURANCE COMPLEX, KOZHIKODE ROAD,**| ||**MANJERI, MALAPPURAM DISTRICT-676 121**| ||**R2 BY ADV. SRI.LAL GEORGE**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3679 OF 2019 ..2.. ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1129 of 2016 on the file of the Motor Accidents Claims Tribunal, Manjeri, which is 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 27.04.2015, while she was travelling in a car bearing registration No.KL-63/A-8921, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent (supplemental 3[rd] respondent before the Tribunal). At the place of accident, the said vehicle hit on a tree, as a result of which, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/-, under various heads. 2. Before the Tribunal, though the 1[st] respondent/owner-cum-driver entered appearance, no written statement was filed. The 2[nd] respondent herein, who was MACA.No.3679 OF 2019 ..3.. arrayed as supplemental 3[rd] respondent, filed a written statement admitting the insurance coverage of the vehicle. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. The respondents failed to adduce any oral or documentary 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 the 1[st] respondent owner-cum-driver. Since insurance coverage of the offending 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.1,47,712/-, which was rounded off to Rs.1,48,000/-, and the insurer was directed to satisfy the award, with interest at the rate of 9% per annum from the date of petition till date of deposit, together with proportionate cost. MACA.No.3679 OF 2019 ..4.. 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 learned Standing Counsel for the 2[nd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent owner-cum-rider was dispensed with, by the order of this Court dated 01.10.2019. 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 MACA.No.3679 OF 2019 ..5.. 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 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 MACA.No.3679 OF 2019 ..6.. ## principle of equitability. ## 10. In the instant case, the compensation awarded by the Tribunal under different heads reads thus; |S.<br>No.|Head of Claim|Amount<br>claimed|Amount<br>allowed|Remarks| |---|---|---|---|---| |1|Loss of earnings|1,00,000/-|40,000/-|10000 x 4| |2|Transport to hospital|5,000/-|4,500/-|750 x 6| |3|Extra nourishment|4,000/-|2,100/-|300 x 7| |4|Damage to clothing &<br>articles|1,000/-|750/-|| |5|Bystander expenses|1,00,000/-|2,800/-|400 x 7| |6|Medical expenses||67,562/-|Ext.A7 series| |7|Compensation for pain &<br>suffering|50,000/-|30,000/-|| |8|Compensation<br>for<br>permanent disability &<br>loss of earning power|1,50,000/-<br>+<br>50,000/-|Nil|| |9|Compensation of loss of<br>expectation of life|20,000/-|Nil|| |10|Inconvenience, hardship<br>etc.|10,000/-|Nil|| |10|Mental and physical<br>shock|10,000/-|Nil|| ||**Total Rs.5,00,000/- **||**Rs. 1,47,712/- (Rounded to**<br>**Rs.1,48000/-)**|| 11. The accident occurred on 27.04.2015. At the time of accident, the appellant was aged 49 years. She claimed a monthly income of Rs.10,000/- as coolie (manual labourer). The appellant has not chosen to mount the box to prove her MACA.No.3679 OF 2019 **==> picture [31 x 8] intentionally omitted <==** monthly income. The Tribunal fixed the monthly income notionally as Rs.10,000/-, for the purpose of assessing compensation under various heads, in the absence of any reliable materials. ## 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 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 MACA.No.3679 OF 2019 ..8.. 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 case that a vegetable vendor is reasonably capable of earning 6,500/- per month. MACA.No.3679 OF 2019 **==> picture [31 x 8] intentionally omitted <==** 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2015, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the fixation of notional monthly income as Rs.10,000/- by the Tribunal is just and proper, which requires no enhancement in this appeal. 15. Towards loss of earning, the Tribunal awarded a sum of Rs.40,000/-, at the rate of Rs.10,000/- per month for a period of 4 months. Ext.A2 is the wound certificate and Ext.A4 is the discharge summary. The appellant was treated as inpatient for a period of seven days from 27.04.2015 to 03.05.2015. She suffered mild head injury, splenic laceration with moderate haemoperitoneum and deep lacerated wound over the scalp. She was treated by laparoscopic cauterisation of the splenic laceration, peritoneal lavage and suturing of the scalp wound. Ext.A6 series documents suggest that she continued treatment as out patient and visited the hospital periodically for review and further treatment. Considering the MACA.No.3679 OF 2019 ..10.. nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is enhanced to 7 months. Therefore, the compensation under the head loss of earning is re-fixed as Rs.70,000/- (10,000 x 7), resulting an additional compensation of **Rs.30,000** /- (70,000 – 40,000). 16. Towards medical expenses, the Tribunal awarded a sum of Rs.67,562/-, covered by Ext.A7 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. 17. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.750/-. Considering the fact that the accident is of the year 2015, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.750/-** (1,500 - 750). 18. As compensation towards pain and suffering, the MACA.No.3679 OF 2019 ..11.. Tribunal awarded a sum of Rs.30,000/-. 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. 19. Though the appellant has not produced any material to show that as a result of the injuries sustained in the accident, she is having any permanent disability, considering the nature of injuries sustained, which includes mild head injury and splenic laceration, this Court deem it appropriate to grant a sum of **Rs.10,000/-** as compensation towards loss of amenities. 20. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which requires no enhancement in this appeal. In the result, the appellant will be entitled for an additional compensation of **Rs.40,750/-** (Rupees forty thousand seven hundred and fifty only) [30,000 + 750 + MACA.No.3679 OF 2019 **==> picture [37 x 8] intentionally omitted <==** 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent/insurer (supplemental 3[rd] respondent before the Tribunal) 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. This appeal is disposed of as above. No order as to costs. Sd/- ## **ANIL K. NARENDRAN,** ## **JUDGE** bka/-