Riji Kannampuzha v. Ponnamma Mundackal; Ramachandran So. Ramapanicker; Manager National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **MACA.No.1319 OF 2010 (E)** **AGAINST THE AWARD IN OP(MV) 2215/2004 DATED 02-03-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER IN OP(MV):** **RIJI KANNAMPUZHA HOUSE, P.J.ANTONY ROAD, VADUTHALA, CHERANELLOOR VILLAGE, ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **1 PONNAMMA MUNDACKAL HOUSE, IRINGOLE P.O., PERUMBAVOOR, ERNAKULAM.** **2 RAMACHANDRAN SO. RAMAPANICKER, MUNDACKAL HOUSE, IRINGOLE P.O., PERUMBAVOOR, ERNAKULAM.** **3 MANAGER NATIONAL INSURANCE CO. LTD., MULLAPPILLY, BUILDINGS, A.M.ROAD, PERUMBAVOOR.** **BY ADV. SMT.RAJI T.BHASKAR, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1319 OF 2010 (E)** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2215 of 2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 09.01.2004, while she was travelling as a pillion rider in a motorcycle bearing registration No.KL-7/AL-454, ridden by her husband, who is the petitioner in OP(MV) No.2214 of 2004. At the place of accident, the motorcycle was hit by an ambassador car bearing registration No.KL-7/D-2599, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/-, under various heads. 2. Before the Tribunal, the 1[st] and 2[nd] respondents remained absent and they were set ex-parte. The 3[rd] **MACA.No.1319 OF 2010 (E)** **3** respondent/insurer filed written statement admitting the insurance coverage of the car involved in the accident; however, denying the negligence alleged against the 2[nd] respondent driver. 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 A14 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 driving of the car by the 2[nd] respondent driver. Since insurance coverage of the said 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.53,000/- together with interest at the rate of 7% per annum from the date of petition till date of award and thereafter 9% per annum till realisation with proportionate cost and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation **MACA.No.1319 OF 2010 (E)** **4** 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 3[rd] respondent insurer. 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 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. **MACA.No.1319 OF 2010 (E)** **5** 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. ## 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Head|Amount<br>awarded<br>(Rs.)| |---|---| |Hospitalization, transportation, attendance<br>expenses damage to clothings & articles, etc.|1,000/-| |Loss of earnings|6,000/-| |Treatment expenses|27,000/-| |Pain and sufferings|12,000/-| |Discomforts & inconvenience|7,000/-| |Total|53,000/-| **MACA.No.1319 OF 2010 (E)** **6** 11. The accident occurred on 09.01.2004. At the time of accident, the appellant was aged 24 years. The appellant claimed a monthly income of Rs.6,000/- by way of conducting an Electrical shop. No reliable 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.4,000/-, for the purpose of assessing compensation under various heads. 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 her 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 **MACA.No.1319 OF 2010 (E)** **7** 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 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 her own business cannot be expected to produce documents to prove her monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove her monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex **MACA.No.1319 OF 2010 (E)** **8** Court accepted her 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 2004, 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.4,500/-, for the purpose of assessing compensation under various heads. 15. As discernible from Ext.A11 copy of wound certificate and Ext.A12 discharge summary, the appellant had sustained lacerated wound on the right thigh laterally, skin deep, contusion (L) shoulder, bleeding from mouth with loose teeth, mobility of teeth and fracture 9[th] rib. X-ray of cervical spine showed mild kyphotic deformity without any instability. Appellant was put on cervical collar and was treated as inpatient for six days. The document marked as Ext.A11 is the wound certificate from Medical Trust Hospital; and Ext.A12 is discharge summary issued from Medical Trust Hospital, Ernakulam. Ext.A13 shows that the appellant underwent ayurvedic treatment from a private **MACA.No.1319 OF 2010 (E)** **9** ayurvedic pharmacy. Ext.A14 series are medical bills evidencing treatment expenses of more than Rs.41,000/-. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.3,000/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. 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/- (4,500 x 4), resulting an additional compensation of **Rs.12,000/-** (18,000 - 6,000). 17. The accident is of the year 2004. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for six days. Towards transportation to hospital, attendance expenses, damage to clothing and articles, etc. 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, a sum of Rs.900/- (150 x 6) is awarded towards bystander expenses; Rs.600/- (100 x 6) **MACA.No.1319 OF 2010 (E)** **10** towards extra nourishment; Rs.750/- towards damage to clothing and articles and Rs.1,500/- towards transportation expenses, resulting an additional compensation of **Rs.2,750/-** [(900 + 600 + 750 + 1500) - 1,000] under the above heads. 18. Towards treatment expenses, the Tribunal awarded a sum of Rs.27,000/-, covered by Ext.A14 series of medical bills. The remaining bills for around Rs.14,000/were towards Ayurvedic treatment. In the absence of proof, the Tribunal did not award any amount covered by those bills. Therefore, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. 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.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 - 12,000). 20. Towards discomforts and inconvenience the **MACA.No.1319 OF 2010 (E)** **11** Tribunal awarded a sum of Rs.7,000/-. No documents were produced before the Tribunal to prove permanent disability, if any, of the appellant, on account of the injuries sustained in the accident. In such circumstances, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side. 21. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.17,750/-** (Rupees Seventeen thousand seven hundred and fifty only) [12,000 + 2,750 + 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 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. **MACA.No.1319 OF 2010 (E)** **12** This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** **JUDGE** Skk//111219