Sebastian Ithupppadam Desom v. T.G.Raghunathan & Anr; United India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** ## **MACA.No.1887 OF 2009** **AGAINST THE AWARD IN OPMV 1587/2004 DATED 04-03-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **SEBASTIAN ITHUPPADAM DESOM, MATTATHUR VILLAGE, AND P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT/S:** **1 T.G.RAGHUNATHAN & ANOTHER GOPU NAIR, MATTATHUR. 2 UNITED INDIA INSURANCE CO.LTD. PARK HOUSE, ROUND NORTH, THRISSUR. R1 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 1887 of 2009 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1587 of 2004 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 28.02.2004, while he was travelling as pillion rider, on a motorcycle bearing registration No.KL-8/W-9002, owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the 1[st] respondent lost control over the vehicle, which capsized and the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumrider remained absent and he was set ex parte. The 2[nd] respondent insurer filed written statement, which was -3- MACA. No. 1887 of 2009 followed by an additional written statement, admitting insurance coverage of the motorcycle involved in the accident; however, denying the negligence alleged against the 1[st] respondent rider. The insurer raised a contention that the policy would not cover the risk of a pillion rider. 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. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. On the side of the respondents, Exts.B1 and B2 were marked. 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 riding of the motorcycle by the 1[st] respondent rider. The Tribunal found that Ext.B1 policy is a package policy, which covers the risk of a pillion rider, as held by this Court in **New India Assurance Company Ltd., v. Hydrose [2008 (3) KLT 778]** . Since insurance coverage of the offending vehicle was not in -4- MACA. No. 1887 of 2009 dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.53,500/-, together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost and the insurer was directed to satisfy the award. 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 2[nd] respondent insurer. 7. 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. 8. 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 -5- MACA. No. 1887 of 2009 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. 9. 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 -6- MACA. No. 1887 of 2009 conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Heads|Amount awarded|Amount awarded| |---|---|---| |Loss of earning|8,000|2,000 x 4| |Bystander's expenses|1,400|| |Transportation expenses|1,000|| |Medical expenses|26,100covered by A7 series of bills|| |Pain and Sufferings|12,000|| |Loss of amenities|5,000|| |-----------------||| |**Total**|**53,500/-**|| |===========||| 11. The accident occurred on 28.02.2004. At the time of accident, the appellant was aged 34 years. The appellant claimed a monthly income of Rs.15,000/- as a salesman in Gulf. No materials were produced before the Tribunal to prove the monthly income of the appellant or even the alleged employment in Gulf. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the -7- MACA. No. 1887 of 2009 Tribunal fixed the monthly income notionally as Rs.2,000/-, for the purpose of assessing compensation under various heads. 12. 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 -8- MACA. No. 1887 of 2009 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. 13. 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. -9- MACA. No. 1887 of 2009 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, 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.4,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A3 is the wound certificate; Ext.A4 is the discharge summary; and Ext.A5 is the medical certificate. As per medical records, in the accident, the appellant sustained swelling on the left forearm and abrasions on both the knees. Investigation revealed fracture of both bones of the left forearm. Ext.A4 discharge card shows that the appellant was in hospital as inpatient for 13 days with compound fracture of both bones of left forearm and that he was reviewed regularly till 15.06.2004. He was again admitted for one day on 17.11.2005 for implant removal. In Ext.A5 medical certificate, he was advised rest for -10- MACA. No. 1887 of 2009 six weeks. 16. In Ext.A6 disability certificate, issued by an individual doctor 10% limb disability and 6.45% whole body disability has been assessed. The disability certificate was not proved by examining the doctor concerned. The Tribunal found that there is no materials to show that disability will affect the job or earning capacity of the appellant as salesman. The Tribunal did not accept the disability assessed in Ext.A6 and no disability compensation was awarded to the appellant. Considering the nature of injuries sustained, the reasoning of the Tribunal in this regard cannot be said to be arbitrary or illegal, warranting an interference in this appeal. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000/-, at the rate of Rs.2,000/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 5 months. Since the monthly income of the appellant is re-fixed notionally as -11- MACA. No. 1887 of 2009 Rs.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.22,500/- (4,500 x 5), resulting an additional compensation of **Rs.14,500/-** (22,500 – 8,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 14 days. Towards transportation to hospital, 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 under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 - 1,000). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.1,400/- (100 x 14). The Tribunal awarded no amount towards extra nourishment. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 14 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the -12- MACA. No. 1887 of 2009 head bystander expenses is re-fixed as Rs.2,100/- (150 x 14), resulting an additional compensation of **Rs.700/-** (2,100 – 1,400). the appellant is granted a sum of **Rs.1,400/-** (14 x 100) as compensation under the head extra nourishment. 20. Towards damage to clothing and articles, no compensation has been granted by the Tribunal. Considering the fact that the accident is of the year 2004, the appellant is granted a sum of **Rs.1,000/-** towards damage to clothing. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.26,100/-, covered by Ext.A7 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.12,000/-. 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 the head pain -13- MACA. No. 1887 of 2009 and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 – 12,000). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. Though Ext.A6 disability certificate was not considered by the Tribunal, considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.2,500/-** (7,500 – 5,000). 24. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.23,600/-** (Rupees twenty three thousand six hundred only) [14,500 + 500 + 700 + 1,400 + 1,000 + 3,000 + 2,500] 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. Payment -14- MACA. No. 1887 of 2009 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 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