Robin Thomas v. Sijo P. KuriaKose, N.D. Mathai and The National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941** # **MACA.No.800 OF 2008** **AGAINST THE AWARD IN OPMV 1071/2003 DATED 08-08-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/PETITIONER:** **ROBIN THOMAS, THARPPUTHOTTIYIL HOUSE, KALIKAVU, KURAVILANGADU.** **BY ADV. SRI.C.P.SAJI** ## **RESPONDENTS/RESPONDENTS:** |**1**|**SIJO P.KURIAKOSE,**| |---|---| ||**PURATHILPARAMBIL HOUSE,**| ||**NEAR HOMEO MEDICAL COLLEGE,**| ||**SCHIVOTHAMAPURAM, KURICHI.**| |**2**|**N.D.MATHAI,**| ||**NAGALOOR HOUSE,**| ||**CHERUVALLY, CHIRAKKADAVU.**| |**3**|**THE NATIONAL INSURANCE CO. LTD.,**| ||**KOTTAYAM.**| **R3 BY ADV. SRI.P.G.JAYASHANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.800 OF 2008** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1071 of 2003 on the file of the Motor Accidents Claims Tribunal, Kottayam, 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 20.04.2003, while he was travelling in a motorcycle bearing registration No.KL-5/M-3747. At the place of accident, the said motorcycle was hit by a maruti van bearing registration No.KL5/M-5837, driven by the 1[st] respondent, owned 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 offending maruti van by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent and 2[nd] respondent remained absent and they were set ex-parte. 3. The 3[rd] respondent/insurer filed written statement admitting the insurance coverage of the maruti van involved in the accident; however, denying the negligence alleged against **MACA.No.800 OF 2008** -3- the 1[st] respondent driver of the maruti van. 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, Exts.A1 to A7 were marked on the side of the appellant/claimant. Respondents have not chosen to adduce any oral or documentary 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 maruti van by the 1[st] respondent driver. Since insurance coverage of the offending 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 Rs.25,500/-, together with interest at the rate of 6% per annum from the date of petition till date of payment, with proportionate cost of Rs.1,500/- and the 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. **MACA.No.800 OF 2008** -4- 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with. 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 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.800 OF 2008** -5- 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. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Transport to hospital|Rs.500/-| |---|---| |Extra nourishment|Rs.1,000/-| |Damage to clothing|Rs.500/-| |Medical expenses|Rs.16,000/-| |Loss of earning (for a period of one month)|Rs.2,500/-| |Pain and suffering|Rs.5,000/-| ||**------------**| |**Total**|**Rs.25,500/-**| ||**=======**| **MACA.No.800 OF 2008** -6- 12. The accident occurred on 20.04.2003. At the time of accident, the appellant was aged 23 years. He claimed a monthly income of Rs.4,500/- as a Cook in Kumarakom Lake Resort. No materials were placed before the Tribunal to prove his monthly income or 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.2,500/-, for the purpose of assessing compensation under different 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 made it clear that, in all cases and in all circumstances, the Tribunal **MACA.No.800 OF 2008** -7- 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 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 **MACA.No.800 OF 2008** -8- month. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2014, 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.4,000/-, for the purpose of assessing compensation under different heads. 16. The document marked as Ext.A4 is the discharge summary issued by the Matha Hospital, Thellakom, Kottayam and Ext.A7 is the wound certificate. As per the medical records, the appellant sustained lacerated wounds all over the body, i.e, deep lacerated injury on the forehead from left to right side, on the left cheek on the chin, on the bottom portion of the face, on the right ear and on both the legs. A4 is the discharge summary. He had undergone inpatient treatment at Matha Hospital, Thellakom from 20.04.2003 and discharged on 23.04.2003. Ext.A5 series of medical bills are for a sum of Rs.23,037/-. On account of duplication, the Tribunal discarded certain bills and fixed the total treatment expenses as Rs.16,000/-. **MACA.No.800 OF 2008** -9- 17. Towards loss of earning, the Tribunal awarded a sum of Rs.2,500/- for a period of 1 month. Considering the nature of injuries sustained by the appellant and taking note of the claim of the appellant that, at the time of accident, he was working as Cook in Kumarakom Lake Resort, this Court deem it appropriate to re-fix the period for loss of earning as 3 months. Since the monthly income of the appellant has already been re-fixed as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.12,000/- (4,000 x 3), resulting an additional compensation of **Rs.9,500/-** (12,200-2,500). 18. Towards transport to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000500). 19. Towards extra nourishment, 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, the compensation awarded by the Tribunal under this head cannot be said to be on the lower **MACA.No.800 OF 2008** -10- side, which requires no enhancement in this appeal. 20. No amount has been granted by the Tribunal towards bystander's expenses. Considering the fact that the appellant had undergone inpatient treatment a period of three days, this Court deem it appropriate to grant a sum of **Rs.450/-** (150 x 3) towards bystander expense. 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. 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.250/-** (750 - 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.16,000/-, 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the **MACA.No.800 OF 2008** -11- compensation awarded by the Tribunal under this head is refixed as Rs.7,000/-, resulting an additional compensation of **Rs.2,000/-** (7,000 - 5,000). 24. On account of the injuries sustained in the accident, the appellant is having facial disfiguration. The appellant has no case that, as on the date of accident, he was an unmarried person. Considering the fact that the appellant sustained injuries at the age of 23 years, which has resulted in facial disfiguration, this Court deem it appropriate to grant a sum of **Rs.5,000/-** as compensation towards disfiguration. 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.17,700/-** (Rupees seventeen thousand seven hundred only) [9,500 + 500 + 450 + 250 + 2,000 + 5,000] 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 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 **MACA.No.800 OF 2008** -12- to the appellant shall be in terms of 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** bpr