Riyad Kabeer v. P.G. Radhakrishnan & Oriental Insurance Company Ltd. (MACA No.1224 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** ## **MACA.No.1224 OF 2010** **AGAINST THE AWARD IN OPMV 751/2006 DATED 30-12-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT :** **RIYAD KABEER, S/O.KABEER, CHETTIYANGADAN HOUSE, KODAKARA VILLAGE DESOM.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENTS :** - **1 P.G.RADHAKRISHNAN, PALLTHERY HOUSE, P.O., MATTATHOOR KUNNU, KODAKARA.** - 2 GIJI, W/O.VIJAYAN ULLATTIPARAMBIL HOUSE, MOONUMURI DESOM, KODAKARA. **[RESPONDENT NO.2 DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 23.10.2019 IN I.A.NO.1/2019 IN MACA.NO.1224/2010.** - **3 THE MANAGER, ORIENTAL INSURANCE COMPANY LTD, ROSY TOWERS, IIND FLOOR, NO.7, NUNGABAKKAM, HIGH ROAD, CHENNAI. *[STATUS OF INSURER IS SUO MOTU CORRECTED AS 3RD RESPONDENT AS PER ORDR DATED 23.10.2019 IN I.A.NO.1/2019 IN MACA.NO.1224/2010. R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA R3 BY SMT.K.S.SANTHI, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No. 1224 of 2010 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.751 of 2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 04.07.2005, while he was travelling as a passenger in a bus bearing registration No.KL-8/S-162, owned by the first respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, while overtaking a lorry, the 2[nd] respondent driver lost control over the bus and it hit on a tree on the side of the road. In the accident, the appellant/claimant and other passengers in the bus sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming compensation under various heads. 2. Before the Tribunal, the respondents 1 and 2 remained absent and they were set _ex parte_ . M.A.C.A.No. 1224 of 2010 3 3. The 3[rd] respondent/ insurer filed written statement admitting the insurance coverage of the bus 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. 4. Before the Tribunal, the claim petition was tried along with the connected matters. Exts.A1 to A15 were marked on the side of the claimants. 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 driving of the bus by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of 69,200/- together with interest at the rate of 7% per annum from the date of petition till realisation with proportionate M.A.C.A.No. 1224 of 2010 4 cost. The 3[rd] respondent insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Despite service of notice, none appears for the 1[st] respondent. The 2[nd] respondent was deleted from the party array vide order dated 23.10.2019 in I.A.No.1/2019. 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 various heads. 9. 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 M.A.C.A.No. 1224 of 2010 5 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 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. M.A.C.A.No. 1224 of 2010 6 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||The compensation claimed<br>under various heads|Amount awarded| |---|---|---| |1|Medical expenses (A5 series<br>of medical bills)|37,700/-| |2|Bystander's expenses|1000/-| |3|Transportation expenses|5,00/-| |4|Loss of income (2000 X 3 ½<br>months)|7,000/-| |5|Pain and suffering|15,000/-| |6|Loss of amenities and<br>enjoyment of life|8,000/-| ||**Total claim**|**69,200/-**| 12. The accident occurred on 04.07.2005. At the time of accident, the appellant was aged 27 years. The appellant claimed a monthly income of 5,000/- as a computer professional. In order to prove the monthly income no documents were produced before the Tribunal. The appellant produced Ext.A4 certificate showing his qualification. 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. M.A.C.A.No. 1224 of 2010 7 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 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. M.A.C.A.No. 1224 of 2010 8 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 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 2005, 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 notionally as M.A.C.A.No. 1224 of 2010 9 Rs.5,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate. Exts.A3 and A13 are the discharge summaries. As per medical records, the appellant sustained depressed fracture of the frontal bone, fracture of the upper orbital rim at the left side, bleeding from the nose, and blurred vision of left eye. CT scan revealed extra dural haematoma also. In Ext.A4 certificate, the deformity of frontal bone is certified. No documents were placed before the Tribunal to show that the injuries sustained in the accident had resulted in permanent disability. The appellant had undergone inpatient treatment for 10 days. Ext.A5 series of medical bills are for a total sum of Rs.37,700/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.7,000/-, at the rate of Rs.2,000/- for a period of 3½ months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3½ 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- M.A.C.A.No. 1224 of 2010 10 fixed notionally as Rs.5,000/-, the compensation under the head loss of earning is re-fixed as Rs.20,000/- (5,000 X 4), resulting an additional compensation of **Rs.13,000/-** (20,000 – 7,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 10 days. 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 re-fixed as Rs.1,500/- resulting an additional compensation of **Rs. 1,000/-** (1,500 - 500). 19. Towards bystander expenses the Tribunal awarded a sum of Rs. 1,000/- at the rate of Rs.100/- for 10 days. The Tribunal awarded no compensation under the head 'extra nourishment'. The accident is of the year 2005. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.1500/- (150 x 10), M.A.C.A.No. 1224 of 2010 11 resulting an additional compensation of **Rs. 500/-** (1500 - 1000). A farther sum of **Rs.1,000/-** (Rs.100 X 10) is granted under the head 'extra nourishment'. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.37,700/-, 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.15,000/-. 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. 22. Towards loss of amenities the Tribunal awarded a sum of Rs.8,000/-. No documents were produced before the Tribunal to prove any permanent disability on account of the injuries sustained in the accident. Therefore the M.A.C.A.No. 1224 of 2010 12 compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 23. The Tribunal awarded no compensation under the head disfiguration. Having considered the nature of injuries sustained and the resultant facial disfiguration, the appellant is granted a sum of **Rs.10,000/-** as compensation under this head. 24. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.25,500/-** (Rupees Twenty five thousand and five hundred only) [13,000 + 1,000 + 500 + 1,000 + 10,000) in this appeal, which will carry interest at the rate of 7% 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/ claimant shall be in terms of the directives issued M.A.C.A.No. 1224 of 2010 13 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** RKM