Saji Thomas v. Binu Abraham, Biju T.V. and The New India Assurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** ## **MACA.No.2730 OF 2012** **AGAINST THE AWARD IN OPMV 972/2005 DATED 15-05-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANT/S:** **SAJI THOMAS S/O. PAILY THOMAS, VETTANAL HOUSE, UPPUKANDOM KARA, KOOTHATTUKULAM VILLAGE.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT/S:** |**1**|**BINU ABRAHAM**| |---|---| ||**PULLITTEL HOUSE, KARIMPANA POST,**| ||**KOOTHATTUKULAM-686662.**| |**2**|**BIJU T.V.**| ||**THATTARUKUDIYIL HOUSE, KARIMPANA POST,**| ||**PALAKKUZHA-686662.**| |**3**|**THE NEW INDIA ASSURANCE COMPANY LTD.**| ||**MUVATTUPUZHA BRANCH-686661.**| ## **R1, R3 BY ADV. SRI.P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2730 of 2012 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.972 of 2005 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, 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 17.05.2005, while he was travelling in an autorickshaw bearing registration No.KL-7/AE-1437, driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent. At the place of accident, the autorickshaw hit a lorry bearing registration No.KL-7/N-2493, parked on the road margin. In the accident, the appellant/claimant and another [whose legal representatives are the claimants in O.P(MV) No.654 of 2005] sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the autorickshaw by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. -3- MACA. No. 2730 of 2012 2. Before the Tribunal, the respondents 1 and 2 remained absent and they were set exparte. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the autorickshaw 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. The claim petition was tried along with O.P(MV) No.654 of 2005. Before the Tribunal, Exts.A1 to A14 were marked on the side of the claimants. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. 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 autorickshaw 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. However, on a -4- MACA. No. 2730 of 2012 finding that the 2[nd] respondent driver of the autorickshaw was not holding a valid driving licence, as on the date of accident, the insurer was permitted to proceed against the 1[st] respondent owner for recovering the amount of compensation. Under various heads, the Tribunal awarded a total compensation of Rs.77,696/-, which was rounded off to Rs.77,700/-, together with interest at the rate of 8% per annum from the date of petition till date of deposit, together with proportionate cost, and the 3[rd] respondent insurer was directed to satisfy the award. The insurer was granted recovery right to recover the said amount by proceeding against the 1[st] respondent, who is the owner of the autorickshaw. 5. Dissatisfied with the quantum of compensation 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. -5- MACA. No. 2730 of 2012 7. During the course of arguments, it is pointed out by the learned counsel for the appellant/claimant and also the learned Standing counsel for the 3[rd] respondent insurer that in view of the law laid down by the Apex Court in **Mukund Dewangan v. Oriental Insurance Co. Ltd. [2017(3) KLT 1000]** , the finding of the Tribunal regarding violation of condition of policy cannot be sustained, since no badge is required for driving an autorickshaw. The learned Standing Counsel for the 3[rd] respondent insurer would fairly submit that the said finding in the impugned award cannot be sustained and in that view of the matter, this appeal can be decided without issuing notice to the owner and driver of the offending autorickshaw. 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 -6- MACA. No. 2730 of 2012 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. 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 -7- MACA. No. 2730 of 2012 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; |**Head**|**Amount**|**claimed**|**Amount awarded**| |---|---|---|---| |Loss of earning||7,000|9,000| |General expenses:|||| |Transport to hospital,|damage to|<br>6,000|3,000| |cloth, extra nourishment,|||| |attendance expenses|etc.||| |Medical expenses||70,000|35,696| |Future treatment||25,000|5,000| |Pain and suffering||25,000|15,000| |Loss of amenities||25,000|10,000| |**Total**||**1,58,000**|**77,696/-**| 12. The accident occurred on 17.05.2005. At the time of accident, the appellant was aged 33 years. The appellant claimed a monthly income of Rs.7,000/- as a timber worker. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not -8- MACA. No. 2730 of 2012 chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.3,000/-, for the purpose of assessing compensation under various 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 -9- MACA. No. 2730 of 2012 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 -10- MACA. No. 2730 of 2012 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 of the appellant notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A10 is the wound certificate issued from Matha Hospital, Thellakam, which would show that the appellant had sustained lacerated would right forehead, scalp vertically, severe head injury, fracture right zygomatic maxillary complex, fracture nasal bone, fracture left occipital bone and fracture frontal bone. Ext.A12 is the treatment certificate. The appellant was undergone inpatient treatment for 13 days. Ext.A14 series of medical bills are for a sum of Rs.35,696/-. 17. Towards loss of earning, the Tribunal awarded a -11- MACA. No. 2730 of 2012 sum of Rs.9,000/-, at the rate of Rs.3,000/- per month for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 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.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.11,000/-** (20,000 – 9,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 13 days. Towards transportation to hospital, damage to cloth, extra nourishment and attendance expenses, the Tribunal awarded a consolidated sum of Rs.3,000/-. The accident is of the year 2005. The appellant had undergone 13 days inpatient treatment. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under these heads is re-fixed as Rs.1,500/- towards -12- MACA. No. 2730 of 2012 transportation expenses; Rs.1,950/- (150 x 13) towards attendance expenses; Rs.1,300/- (100 x 13) towards extra nourishment; and Rs.750/- towards damage to clothing, resulting an additional compensation of **Rs.2,500/-** [(1,500 + 1,950 + 1,300 + 750) – 3,000]. 19. Towards medical expenses, the Tribunal awarded a sum of Rs.35,696/-, covered by Ext.A14 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. 20. Towards future treatment, even the absence of any reliable materials, the Tribunal awarded a sum of Rs.5,000/-. The compensation awarded by the Tribunal under this head cannot be said to be on the lower side. 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 -13- MACA. No. 2730 of 2012 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.10,000/-. No documents were produced before the Tribunal to prove permanent disability on account of the injuries sustained in the accident. Therefore, the compensation awarded by the Tribunal under this head cannot also be said to be on the lower side, warranting an enhancement in this appeal. 23. The finding the Tribunal as to violation of conditions of policy is set aside in view of the law laid down by the Apex Court in **Mukund Dewangan's case (supra)** and the 3[rd] respondent insurer is held liable to pay the amount of compensation together with interest and cost to the appellant/claimant. 24. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.13,500/-** (Rupees thirteen thousand five hundred only) [11,000 + -14- MACA. No. 2730 of 2012 2,500] 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 Rs.77,700/- originally awarded by the Tribunal together with interest and proportionate cost and also 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. Payment of the said amount shall be made to the appellant/claimant as per the directives issued 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** das