SIVAN v. UMMARKHAN, ALI & NATIONAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** ## **MACA.No.1789 OF 2016(E)** **AGAINST THE AWARD IN OP(MV)NO.1224/2011 DATED 25-03-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER IN THE OP(MV):** **SIVAN** **AGED 49, S/O.KUTTAPPAN,NAGLIKATTU HOUSE, THURTHY (P.O.),VENGOOR WEST VILLAGE, KUNNATHANADU TALUK, ERNAKULAM DISTRICT, PIN 683 545.** **BY ADV. SRI.P.T.ABHILASH** ## **RESPONDENT/RESPONDENTS IN THE OP(MV):** **1 UMMARKHAN S/O.ABDULKHADER, PALLIPURATHAN (H), VATTACKATTUPADY BHAGAM,IRINGOLE KARA, PERUMBAVOOR VILLAGE, ERNAKULAM DISTRICT – 683 548.** **2 ALI, S/O.KOCHUMUHAMMED, PALLIPURATHAN (H),VATTACKATTUPADY BHAGAM, IRINGOLE KARA, PERUMBAVOOR VILLAGE, ERNAKULAM DISTRICT – 683 548.** ## **3 MANAGER** **NATIONAL INSURANCE CO.LTD,BRANCH OFFICE, PERUMBAVOOR, ERNAKULAM DISTRICT – 683 542.** **R1 BY ADV. SRI.S.RENJITH** **R3 BY ADV. SRI.P.K.MANOJ KUMAR,SC,NATIONAL INSURANCE CO. LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1789 of 2016(E) 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1224 of 2011 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, 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 01.06.2011, while he was riding a motorcycle. At the place of accident, the motorcycle was hit by a car bearing registration No.KL17/C-9241 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/under various heads. 2. Before the Tribunal, the 1[st] respondent driver and the 2[nd] respondent owner of the car filed joint written statement admitting the accident; however denying the negligence alleged against the 1[st] respondent driver. They contended that the accident occurred due to the MACA No.1789 of 2016(E) 3 negligence on the part of the appellant/claimant in riding the motorcycle. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying the negligence alleged against its driver. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. Both sides have not chosen to adduce any oral 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 driving of the car by its 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.1,63,532/-, together with interest at the rate of 9% per annum from the date of petition till date of deposit, with proportionate cost, and MACA No.1789 of 2016(E) 4 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. 7. Heard the learned counsel for the appellant/ claimant, the learned counsel for respondents 1 and 2 and also the learned Standing Counsel for the 3[rd] 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 to be borne in mind that the compensation is not MACA No.1789 of 2016(E) 5 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; The compensation Amount Amount Basis/vital MACA No.1789 of 2016(E) 6 ||claimed<br>under<br>various heads|claimed<br>(in Rupees)|allowed<br>(in Rupees)|details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earnings|1,00,000/-|15,000/-|Rs.5000 x 3<br>months| |2|Partial<br>loss<br>of<br>earnings|50,000/-|NIL|| |3|Transport to hospital|10,000/-|1,000/-|One admission| |4|Extra nourishment|10,000/-|3,750/-|1250x3 months| |5|Damage to clothes<br>etc|10,000/-|1,000/-|| |6|Medical expenses|2,00,000/-|97,782/-|Actual medical<br>bills| |7|Attendant charges|20,000/-|5,000/-|Rs.250/- for 20<br>days| |8|Pain and suffering|2,00,000/-|25,000/-|Head injury| |9|Loss of amenities etc.|1,00,000/-|15,000/-|| |10|Loss<br>of<br>earning<br>power|1,00,000/-|NIL|| |11|Disability|1,00,000/-|NIL|No<br>disability<br>certificate| ||Total|18,76,000/-<br>Limited to<br>18,00,000/-|1,63,532/-|Rs.1,63,532/-<br>with interest @<br>9 p.a.| 12. The accident occurred on 01.06.2011. At the time of accident, the appellant was aged 43 years. The appellant claimed a monthly income of Rs.7,000/- as mason. The appellant has not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads. MACA No.1789 of 2016(E) 7 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 work, which may include the ground realities prevailing at the relevant point of time. MACA No.1789 of 2016(E) 8 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. 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, the monthly income of Rs.7,000/- claimed in the claim petition MACA No.1789 of 2016(E) 9 is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A6 is the wound certificate and Ext.A7 is the treatment certificate. As per the medical records, the appellant sustained contused abrasion occipital scalp; abrasion with tenderness left knee and thigh; abrasion toes right foot; and right tempero parietal subarachnoid haemorrhage. The appellant had undergone inpatient treatment for a period of 20 days. Ext.A8 series of medical bills are for a sum of Rs.98,732/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.5,000/- 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 refixed notionally as Rs.7,000/-, the compensation under the head loss of earning is re-fixed as Rs.28,000/- (7,000 x 4), resulting an additional compensation of **Rs.13,000/-** . MACA No.1789 of 2016(E) 10 (28,000 – 15,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 20 days. The accident is of the year 2011. 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.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500 – 1,000). 19. Towards attendant charges (bystander expenses), the Tribunal awarded a sum of Rs.5,000/- (250 x 20). Towards extra nourishment, the Tribunal awarded a sum of Rs.3,750/-. The accident is of the year 2011 and the appellant had undergone inpatient treatment for 20 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded under the above heads represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards damage to clothing and articles, the MACA No.1789 of 2016(E) 11 Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2011, the compensation under this head is re-fixed as Rs.1,250/-, resulting an additional compensation of **Rs.250/-** (1,250 – 1,000). 21. Towards treatment expenses, the Tribunal awarded a sum of Rs.97,782/- covered by Ext.A8 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.25,000/-. 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 side. Therefore, the appellant is not entitled for any enhancement under this head. 23. No materials were produced before the Tribunal to prove any permanent disability of the appellant on account of the injuries sustained in the accident. In the MACA No.1789 of 2016(E) 12 absence of any such materials, the Tribunal awarded no compensation under the head permanent disability. Even in the absence of any such materials, the Tribunal awarded Rs.15,000/- under the head loss of amenities, which cannot be said to be on the lower side. 24. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.14,750/-** (Rupees Fourteen thousand seven hundred and fifty only) [13,000 + 1,500 + 250] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 362 days in filing this appeal, in terms of the order of this Court dated 31.10.2016 in C.M.Appln.No.2123 of 2016. 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 additional compensation to the appellant/claimant shall be made taking note of the law on MACA No.1789 of 2016(E) 13 the point and in terms of 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. The appellant shall provide his Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV/4/3