Ravi T.K. v. Raju; AbooBakkar Sidhique; United India Insurance Co Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **MACA.No.1133 OF 2009** **AGAINST THE AWARD IN OPMV 847/2003 DATED 07-03-2008 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/PETITIONER:** **RAVI T.K., AGED 52 YEARS, S/O.KOCHITTAMAN, THEKKUMKATTIL HOUSE, MANJALI, MATTUPURAM, MANNAM PO** **BY ADV. SRI.GOPAKUMAR G. (ALUVA)** ## **RESPONDENTS/RESPONDENTS:** |**1**|**RAJU, X/358, KOOVAPARAMBIL HOUSE,**| |---|---| ||**CHERAI PO**| |**2**|**ABOOBAKKAR SIDHIQUE, AGED 41 YEARS**| ||**S/O.MUHAMMED, NADUVILAPARAMBIL, THANNIPADAM, MANJALI,**| ||**KARUMALLUR.**| |**3**|**UNITED INDIA INSURANCE CO LTD**| ||**BRANCH OFFICE MUNICIPAL BUILDINGS,**| ||**MAIN ROAD, N.PARUR.**| **R3 BY ADV. SMT.S.JAYASREE, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1133 OF 2009** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.847 of 2003 on the file of the Motor Accidents Claims Tribunal, North Paravur, which is 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 09.05.2003, while he was travelling in a motorcycle bearing registration No.KL-07/S-2913, as pillion rider. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KLQ-7718 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,34,000/-, under various heads, which was limited to Rs.2,00,000/- for the purpose of payment of court fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set exparte. **MACA.No.1133 OF 2009** 3 3. The 3[rd] respondent/insurer filed written statement admitting insurance coverage of the offending motorcycle; however, denying the negligence alleged against the 2[nd] respondent rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is excessive. 4. 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. 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 riding of the offending motorcycle by the 2[nd] respondent rider. Since the insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. 6. Under various heads, the Tribunal awarded a total compensation of Rs.34,850/-, and the 3[rd] respondent insurer was directed to satisfy the award, with interest at the rate of 7% per annum from the date of petition till date of payment, together with proportionate cost. **MACA.No.1133 OF 2009** 4 7. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 8. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 15.10.2019. 9. 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 different heads. 10. 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 **MACA.No.1133 OF 2009** 5 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. 11. 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. 12. The compensation awarded by the Tribunal under various heads reads thus: Pain and suffering Rs.9,000/Loss of amenities Rs.7,000/Loss of earning for four months Rs.8,000/- **MACA.No.1133 OF 2009** 6 |Extra nourishment charges<br>By standers expenses<br>Medical expenditure<br>Transportation<br>Damage to cloths<br>Total|Rs.1,000/-<br>Rs.2,100/-<br>Rs.7,000/-<br>Rs.500/-<br>Rs.250/-| |---|---| ||Rs.34,850/-| 13. The accident occurred on 09.05.2003. At the time of accident, the appellant was aged 52 years. He claimed a monthly income of Rs.8,000/- as a toddy tapper. Though Ext.A7 certificate issued by the Paravur Taluk Chethuthozhilali Union was placed on record, neither the appellant nor the person who issued that certificate have 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 different heads. 14. 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 **MACA.No.1133 OF 2009** 7 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. 15. 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 **MACA.No.1133 OF 2009** 8 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. 16. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2003, 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 refix the monthly income of the appellant notionally as Rs.4,500/-, for the purpose of assessing compensation under different heads. 17. As per Ext.A4 wound certificate the appellant sustained Type I open fracture tibia, lacerated wound left leg, abrasion (R) Head and abrasion lower 1/3[rd] of left leg. He had undergone inpatient treatment for 21 days. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000/-, at the rate of Rs.2,000/- per month for a period of 4 months. Considering the nature of injuries sustained and the **MACA.No.1133 OF 2009** 9 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 just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.18,000/- (4,500x4), resulting an additional compensation of **Rs.10,000/-** . 19. 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 awarded by the Tribunal under this head is refixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** . 20. Towards extra nourishment, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the appellant had undergone inpatient treatment a period of 21 days, the compensation awarded by the Tribunal under this head is refixed as Rs.2,100/- (100x21), resulting an additional compensation of **Rs.1,100/-** . 21. The Tribunal awarded an amount of Rs.2,100/- towards **MACA.No.1133 OF 2009** 10 bystander expenses. Considering the fact that the appellant had undergone inpatient treatment for a period of 21 days, the compensation awarded by the Tribunal under this head is refixed as Rs.3,150/- (150x21) resulting an additional compensation of **Rs.1,050/-** . 22. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2003, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** . 23. Towards medical expenses, the Tribunal awarded a sum of Rs.7,000/-, covered by Ext.A8 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. 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.9,000/-. 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 is refixed as Rs.10,000/-, resulting an additional compensation of **Rs.1,000/-** . **MACA.No.1133 OF 2009** 11 25. Towards loss of amenities the Tribunal awarded a sum of Rs.7,000/-. Considering the nature of injuries sustained and also the nature of employment of the appellant, the compensation awarded by the Tribunal under this head is refixed as Rs.10,000/-, resulting an additional compensation of **Rs.3,000/-** . In the result, the appellant will be entitled for an additional compensation of **Rs.17,150/-** (Rupees Seventeen thousand one hundred and fifty only) [10,000 + 500 + 1,100 + 1050 + 500 + 1,000 + 3,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] 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. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN** jv ## **JUDGE**