SABEENA v. Vipin, Anil Kumar, United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **MACA.No.4148 OF 2019** **AGAINST THE AWARD IN OPMV 1278/2017 DATED 26-06-2019 OF IIND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM.** ## **APPELLANT:** **SABEENA, AGED 30 YEARS, W/O.NAZIMUDHEEN, KUNNIL KIZHAKKATHIL VEEDU, THOPPIL MUKKU, MAYYANADU P.O., KOLLAM-691 303.** **BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE** ## **RESPONDENTS:** **1 VIPIN, S/O.SASIDHARAN PILLAI, VINOD BHAVANAM, KURUMANDAL, NEDUNGOLAM P.O., PARAVOOR, KOLLAM DISTRICT, PIN-691 301. 2 ANILKUMAR, S/O.ANANDAN, KASAVINKOOTTATHIL HOUSE, P.J.ANTONY HOUSE, PALARIVATTOM, ERNAKULAM-682 025. 3 UNITED INDIA INSURANCE CO.LTD., CHINNAKKADA, KOLLAM-691 001. SRI P.K.MANOJ KUMAR, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.4148 OF 2019** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.1278 of 2017 on the file of the II[nd] Additional Motor Accidents Claims Tribunal, Kollam, 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 04.09.2016, while she was walking on the side of Kollam-Alappuzha National Highway. At the place of accident, a tourist van bearing registration No.KL-07/CD-146, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent knocked her down. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the said vehicle by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent/insurer filed written statement admitting the insurance coverage of the vehicle involved in **MACA.No.4148 OF 2019** -3- the accident; however, denying negligence alleged against the 1[st] 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, Exts.A1 to A9 series were marked on the side of the appellant/claimant. No oral or documentary evidence was adduced on the side of the respondents. 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 offending vehicle by the 1[st] 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.76,137/-, together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost and the insurer was directed to satisfy the award. **MACA.No.4148 OF 2019** -4- 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. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 is 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 **MACA.No.4148 OF 2019** -5- 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 nonviolation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; **MACA.No.4148 OF 2019** -6- |Sl<br>No|Head of Claim|Amount<br>claimed<br>(in Rupees)|Amount<br>Awarded<br>(in Rupees)|Basis-vital<br>details in a<br>nutshell|Remarks| |---|---|---|---|---|---| |1|Loss of earning|25,000/-|14,000/-|Rs.7,000x2|| |2|Transport to<br>hospital|5,000/-|5,000/-||| |3|Extra nourishment|3,000/-|2,000/-||| |4|Damage to<br>clothing|1,000/-|1,000/-||| |5|Bystander's<br>expenses|5,000/-|2,000/-||| |6|Medical expenses|25,000/-|27,137/-||| |7|Compensation for<br>pain and suffering|20,000/-|15,000/-||| |8|Compensation for<br>the continuing or<br>permanent<br>disability if any or|50,000/-|NIL (no<br>documents<br>produced||| |9|Compensation for<br>the loss of future<br>treatment|5,000/-|NIL (no<br>documents<br>produced||| |10|Compensation for<br>the loss of<br>amenities|30,000/-|10,000/-||| ||**Total**|**Rs.1,50,000/- **|**Rs.76,137/-**||**Rs.76,137/-**<br>along with<br>9% interest<br>p.a. from<br>25-08-2017<br>till realisation.| 12. The accident occurred on 04.09.2016. At the time of accident, the appellant was aged 28 years. She claimed a monthly income of Rs.15,000/- as Sales girl. No documents were placed on record before the Tribunal to prove the monthly income of the appellant. She has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.7,000/-, **MACA.No.4148 OF 2019** -7- 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 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 **MACA.No.4148 OF 2019** -8- 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 month. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2016, and taking note of the fixation of **MACA.No.4148 OF 2019** -9- 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.10,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the accident register cum wound certificate issued from T.D. Medical College Hospital, Alappuzha. Ext.A7 series and Ext.A7(a) are discharge summaries issued from Medical Trust Hospital, Kochi and Kristu Jyothi Hospital, Njarakkal. Exts.A8 series and A8(a) are scan reports. The injuries sustained by the appellant, as borne out from medical reports are abrasion right parietal area; abrasion left arm and forearm; pain and wound of left upper limb and wound of posterior aspect of left shoulder; 10 x 10 cm superficial abrasion on poeterio lateral aspect of arm; soft tissue swelling on the right parieto occipital region; and deep abrsion on proximal forearm. She had undergone inpatient treatment at Medical College Hospital, Alappuzha and Medical Trust Hospital, Kochi and thereafter, Kristu Jyothi Hospital, Njarakkal. Ext.A9 series **MACA.No.4148 OF 2019** -10- of medical bills are for a total sum of Rs.27,127/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.14,000/-, at the rate of Rs.7,000/- per month for a period of 2 months. The appellant was a sales girl. 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 can be re-fixed as 3 months. Since the monthly income of the appellant is re-fixed notionally as Rs.10,500/-, the compensation under the head loss of earning is re-fixed as Rs.31,500/- (10,500 x 3), resulting an additional compensation of **Rs.17,500/-** (31,500 - 14,000). 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/- (200 x 10). 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 these heads represents just and reasonable **MACA.No.4148 OF 2019** -11- compensation, which requires no enhancement in this appeal. 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2016, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 - 1,000) 20. Towards bystander's expenses, the Tribunal awarded a sum of Rs.2,000/-. Considering the fact that the appellant had undergone inpatient treatment a period of ten days, the compensation awarded by the Tribunal is re-fixed as Rs.3,000/- (300 x 10), resulting an additional compensation of **Rs.1,000/-** (3,000 - 2,000) under this head. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.27,137/-, covered by Ext.A9 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. Considering the **MACA.No.4148 OF 2019** -12- 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, which requires no enhancement in this appeal. 23. The medical records placed on record would not indicate any injury which may result in permanent disability. The appellant has also not produced materials to prove any permanent disability that had arisen out of the injuries sustained in the accident. Even in the absence of any such materials, the Tribunal awarded a sum of Rs.10,000/- as compensation for loss of amenities. The compensation awarded by the Tribunal under this head cannot be said on the lower side. In the absence of any materials to prove permanent disability, the Tribunal cannot be found fault in not awarding compensation under the head permanent disability. 24. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.19,000/-** [17,500 + 500 + 1,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date **MACA.No.4148 OF 2019** -13- 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr