Ramakrishnan Achary.K v. The Branch Manager, New India Assurance Co Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** **MACA.No.3548 OF 2019** **AGAINST THE AWARD IN OPMV 341/2014 DATED 31-08-2018 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA** ## **APPELLANT/PETITIONER:** **RAMAKRISHNAN ACHARY.K, AGED 65 YEARS S/O KESAVAN ACHARY, PUTHEN PURACKAL, CHERUTHANA MURI, CHERUTHAN VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT-690 517.** **BY ADV. SMT.RESMY M.S** ## **RESPONDENT/2ND RESPONDENT:** **THE BRANCH MANAGER NEW INDIA ASSURANCE CO LTD, KAYAMKULAM-690 502.** **BY ADV. SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 3548 of 2019 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.314 of 2014 of 2016 on the file of the Additional Motor Accidents Claims Tribunal, Mavelikara, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him on a motor accident, which occurred on 28.07.2011, while he was travelling on a motorcycle bearing registration No.KL-29/C-5836. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-31/A-5825 owned and ridden by the 1[st] respondent before the Tribunal and insured with the respondent herein. As a result of the accident, the appellant/claimant fell down and sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the offending motorcycle by its rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, the owner-cum-rider remained ex parte. The insurer filed written statement admitting the -3- MACA. No. 3548 of 2019 insurance coverage of the offending motorcycle; however, denying the negligence attributed on the rider of that motorcycle. It was pointed out that the vehicle involved in the accident was having valid insurance with the insurer, at the time of accident. 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 A8 were marked on the side of the appellant/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 riding of the offending motorcycle by its owner-cum-rider. Since insurance coverage of the offending 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.1,22,000/-, and the insurer was directed to satisfy the award, together with interest at the rate of 9% per annum from the date of petition -4- MACA. No. 3548 of 2019 till realisation, with proportionate cost. 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 respondent/insurer. 7. During the course of arguments, the learned counsel for the appellant would point out that the grievance of the appellant is confined to the fixation of notional monthly income by the Tribunal at a lower rate. The notional income has to be re-fixed appropriately after consequential enhancement under the head loss of earning and the compensation towards permanent disability. 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 the heads loss of earning and permanent disability. 9. In **State of Haryana v. Jasbir Kaur [(2003) 7** -5- MACA. No. 3548 of 2019 **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 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 -6- MACA. No. 3548 of 2019 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; |Sl.<br>No.|The compensation<br>claimed under different<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earnings|50000|18000|3000x6 months| |2|Transport to hospital|1200|1200|| |3|Extra nourishment|2550|2550|| |4|Damage to clothing and<br>articles|2700|1500|| |5|Treatment expenses|11750|2328|As per Ext.A8<br>series| |6|Bystander's expenses|1800|1800|| |7|Compensation for pain &<br>sufferings|40000|40000|| |8|Compensation for<br>permanent disability|60000|24948|3300x12x7x9/100| |9|Compensation for Loss of<br>earning power, loss of<br>amenities in life and<br>enjoyment of life|30000|30000|| ||**Total**|**2,00,000/-**|**1,22,326/-**|| 12. The accident occurred on 28.07.2011. At the time -7- MACA. No. 3548 of 2019 of accident, the appellant was aged 65 years, as per the findings of the Tribunal. He claimed a monthly income of Rs.15,000/- as blacksmith. No materials were placed before the Tribunal to prove the monthly income of the appellant. He has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. 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. The Apex Court -8- MACA. No. 3548 of 2019 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 -9- MACA. No. 3548 of 2019 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. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2011, 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.8,000/-, for the purpose of assessing compensation under various heads. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.18,000/-, at the rate of Rs.3,000/- 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 just and -10- MACA. No. 3548 of 2019 reasonable. Since the monthly income of the appellant is refixed notionally as Rs.8,000/-, the compensation under the head loss of earning is re-fixed as Rs.48,000/- (8,000 x 6), resulting an additional compensation of **Rs.30,000/-** (48,000 – 18,000) 17. Towards disability compensation the Tribunal awarded a sum of Rs.24,948/- (3,300 x 12 x 7 x 9/100). As per Ext.X1 disability certificate issued by the Medical Board at the Medical College Hospital, Alappuzha, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 9%. As per Ext.A5 discharge certificate and Ext.A6 discharge card, the appellant sustained fracture of left 2[nd] , 3[rd] , 4[th] and 5[th] ribs, fracture of left clavicle, periorbital oedema, abrasion over left hand and flank and tenderness left side of chest. The Tribunal accepted the percentage of disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. The Tribunal added 10% of the notional income towards future prospects. In **Syed Sadiq's case (supra)** , the -11- MACA. No. 3548 of 2019 Apex Court granted future prospects in injury case. That was a case in which, considering the nature of disabilities assessed, the Apex Court found that the claimants in those cases are having higher degree of functional disability. The appellant herein, who is having only 10% permanent disability on account of the injuries sustained in the accident, is not entitled for assessment of disability compensation by adding future prospects. Since the monthly income of the appellant is re-fixed as Rs.8,000/- the compensation under the head permanent disability is re-fixed as Rs.60,480/- (8,000 x 12 x 7 x 9/100), resulting an additional compensation of **Rs.35,532** /- (60,480 - 24,948). 19. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.65,532/-** (Rupees sixty five thousand five hundred and thirty two only) [30,000 + 35,532] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, -12- MACA. No. 3548 of 2019 excluding the period of delay of 229 days in filing this appeal, which was condoned as per order dated 01.10.2019 in C.M.Application No.1 of 2019, subject to the condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said period for the period of delay, 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. This appeal is disposed of as above. No order as to costs. **Sd/ANIL K.NARENDRAN JUDGE** das