Sanu Thamban v. The Branch Manager, New India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941** ## **MACA.No.4057 OF 2019** **AGAINST THE AWARD IN OPMV 818/2012 DATED 03-06-2019 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA** ## **APPELLANT/PETITIONER :** **SANU THAMBAN, AGED 37 YEARS S/O.THAMBAN, SANU BHAVANAM, CHUNGOLI MURI, CHINGOLI VILLAGE, KARTHIKAPPALLY TALUK - 690 532.** **BY ADV. SMT.RESMY M.S** ## **RESPONDENT/3RD RESPONDENT :** **THE BRANCH MANAGER, NEW INDIA INSURANCE CO.LTD., POOVATHOOR BUILDING, M.C.ROAD, CHENGANNUR - 689 121.** ## **BY SRI.A.A.ZIYAD RAHMAN, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.4057 OF 2019** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.818 of 2012 on the file of the Additional Motor Accidents Claims Tribunal, Mavelikkara, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, which occurred on 08.03.2011, while he was riding a motorcycle bearing registration No.KL-04/P-9794. At the place of accident, the motorcycle was hit by a lorry bearing registration No.KL04/R-3493 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 lorry by the 1[st] respondent driver, 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 driver remained absent and he was set ex-parte. The 2[nd] respondent owner filed written statement admitting the accident; however, denying the negligence alleged against **MACA.No.4057 OF 2019** **3** the 1[st] respondent driver. It was pointed out that the vehicle involved in the accident was having valid insurance with the 3[rd] respondent/insurer, at the time of accident and that, the 1[st] respondent driver was holding a valid driving licence. 3. The 3[rd] respondent/insurer filed written statement contending that the claimant had sustained only minor injuries. It is also contended that the 1[st] respondent was not authorised to drive the transport vehicle at the time of accident and that, the 2[nd] respondent unauthorisedly entrusted the vehicle to the 1[st] respondent. There was also 50% contributory negligence on the part of the claimant as evident from the scene mahazar prepared by the Kareekulangara Police. Though the lorry was insured with the 3[rd] respondent, the liability to indemnify is subject to the conditions of the policy. 4. Before the Tribunal, Exts.A1 to A20 were marked on the side of the appellant/claimant. On the side of the respondents, Exts.B1 to B3 were marked. The document marked as Ext.X1 is the disability certificate issued by the Medical Board at Government T.D.Medical College, **MACA.No.4057 OF 2019** **4** Alappuzha assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident. 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 lorry by the 1[st] respondent driver. Since the insurance coverage of the offending vehicle was not disputed based on reliable materials, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,93,714/and the insurer was directed to satisfy the award, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 15.05.2012 till date of deposit, with proportionate cost. The insurer was directed to satisfy the award within 90 days from the date of 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 **MACA.No.4057 OF 2019** **5** respondent insurer. 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. 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 **MACA.No.4057 OF 2019** **6** 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; ||Head of Claim|Amount claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Basis-<br>vital<br>details in<br>a nutshell| |---|---|---|---|---| |1|Loss of earnings|1,00,000|1,20,960|| |2|Compensation for<br>permanent<br>disfiguration,<br>disability and loss<br>of earning power|65,000||(4,000+1<br>,600)-<br>15,12,12/<br>100| |3|Transportation|5,000|5,000|| |4|Extra<br>nourishment|5,000|3,000|| |5|Damage<br>to<br>clothing<br>and|3,000|2,000|| **MACA.No.4057 OF 2019** **7** ||motorcycle|||| |---|---|---|---|---| |6|Medical expense|40,000|16,304|As<br>per<br>Ext.A18,<br>A19 and<br>A20<br>series| |7|Bystanders<br>expenses|18,000|16,450|47x350| |8|House<br>maid<br>expenses|9,000|Nil|| |9|Compensation for<br>Pain<br>and<br>sufferings|35,000|30,000|| |10|Compensation for<br>loss of amenities<br>in life|20,000|Nil|| ||Total|**Rs.3,00,000/-**|**Rs.1,93,714/-**|| 12. The accident occurred on 08.03.2011. At the time of accident, the appellant was aged 30 years. The appellant claimed a monthly income of Rs.5,500/- as a Carpenter. No 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. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the **MACA.No.4057 OF 2019** **8** 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. 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** **MACA.No.4057 OF 2019** **9** **(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 2011, 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.5,500/-, as claimed in the claim petition, for the purpose of assessing compensation under various **MACA.No.4057 OF 2019** **10** heads. 16. The document marked as Ext.A6 is a copy of the wound certificate and Exts.A7, A10 and A16 are the discharge cards. As per the medical records, in the accident, the appellant sustained incised wound right leg, contusion right leg, Type I open fracture both bone right leg, lacerated wound both shoulder and lacerated wound both elbow. He had undergone inpatient treatment for a period of 47 days during different spells. Exts.A19 and A20 series are the medical bills for a sum of Rs.16,304/-. 17. In Ext.X1 disability certificate issued by the Medical Board at the Government T.D.Medical College, Alappuzha, permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 12%. The Tribunal accepted the percentage of permanent disability assessed in Ext.X1, for the purpose of awarding compensation under various heads. 18. No amount has been awarded by the Tribunal towards loss of earnings. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, the appellant can **MACA.No.4057 OF 2019** **11** be granted loss of earnings for a period of four months. Since the monthly income of the appellant is re-fixed notionally as Rs.5,500/-, this Court deem it appropriate to grant a sum of **Rs.22,000/-** (5,500 x 4) under the head loss of earnings. 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 47 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone during different spells of hospitalisation, as borne out from medical records, the compensation under this head is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.2,500/-** (7,500 – 5,000). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.16,450/- (350 x 47), which represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards extra nourishment, the Tribunal awarded a sum of Rs.3,000/-. The accident is of the year 2011 and **MACA.No.4057 OF 2019** **12** the appellant had undergone inpatient treatment for 47 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head extra nourishment is re-fixed as Rs.7,050/- (150 x 47), resulting an additional compensation of **Rs.4,050/-** (7,050 - 3,000) under this head. 22. Towards damage to clothing, the Tribunal awarded a sum of Rs.2,000/-, which represents just and reasonable compensation and requires no enhancement in this appeal. 23. Towards medical expenses, the Tribunal awarded a sum of Rs.16,304/-, covered by Exts.A19 and A20 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. 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical **MACA.No.4057 OF 2019** **13** 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. 25. Towards loss of amenities, no amount has been awarded by the Tribunal. In Ext.X1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 12%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.X1 disability certificate, this Court deem it appropriate to grant a sum of **Rs.15,000/-** towards the head loss of amenities. 26. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.43,550/-** (Rupees Forty three thousand five hundred and fifty only) [22,000 + 2,500 + 4,050 + 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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, **MACA.No.4057 OF 2019** **==> picture [15 x 8] intentionally omitted <==** after deducting the liability, if any, of the appellant/ claimant towards Balance Court Fee and Legal Benefit Fund. Payment of additional compensation granted in this appeal 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/6/11