Sivarajan vs The Branch Manager, National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** **MACA.No.4687 OF 2019(A)** **AGAINST THE AWARD IN OPMV 1285/2011 DATED 28-02-2017 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL - II, PATHANAMTHITTA** ## **APPELLANT/PETITIONER IN OP(MV):** **SIVARAJAN AGED 29 YEARS S/O. BHASKARAN, MUTHUPALAKKAL HOUSE, VETTIPPURAM MURI, PATHANAMTHITTA VILLAGE, MUNDUKOTTACKAL P.O., KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT** **BY ADVS. BIJU (MANJINIKARA) T.K. SMT.ANNIE M.ABRAHAM** ## **RESPONDENT/2ND RESPONDENT IN OP(MV):** **THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, KALLAKATHARA BUILDING, MAIN ROAD, PATHANAMTHITTA-689 645** ## **R1 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.4687 OF 2019(A)** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1285 of 2011 on the file of the Additional Motor Accidents Claims Tribunal-II, Pathanamthitta, 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 04.08.2011, while he was walking along the side of a public road. At the place of accident, he was knocked down by an autorikshaw bearing registration No.KL-3/E-4689, owned and driven by the 1[st] respondent before the Tribunal and insured with the respondent herein. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorikshaw by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.50,000/- under various heads. 2. Before the Tribunal, the owner-cum-driver of the autorikshaw did not appear. The respondent insurer filed written statement admitting insurance coverage of the autorikshaw involved in the accident; however, denying the negligence alleged against its driver. The insurer contended that the accident **MACA.No.4687 OF 2019(A)** 3 occurred due to the negligence on the part of the appellant. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer 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. Both sides have not chosen to adduce any oral evidence. 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 autorikshaw 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.25,000/-, together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost, and the respondent 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. **MACA.No.4687 OF 2019(A)** 4 6. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 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 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 **MACA.No.4687 OF 2019(A)** 5 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. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |unal under various heads reads thus;|| |---|---| |Pain and suffering|15,000| |Transportation to hospital|1,000| |Extra nourishment|2,000| |Damage to clothing|2,000| |Medical expenses|2,000| |Bystander's expense|3,000| |Total|**25,000**| 11. The accident occurred on 04.08.2011. At the time of accident, the appellant was aged 34 years. The appellant claimed a monthly income of Rs.9,000/- as coolie (manual labourer). He has not chosen to mount the box. The Tribunal did not fix the monthly income of the appellant. **MACA.No.4687 OF 2019(A)** 6 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 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 **MACA.No.4687 OF 2019(A)** 7 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. 14. 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.8,000/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A4 is the accident **MACA.No.4687 OF 2019(A)** 8 register-cum-wound certificate; Ext.A5 is the discharge card; and Ext.A6 is the CT Scan bill. As per medical records, in the accident, the appellant sustained contused abrasion right outer earlobe; tenderness of right shoulder and left shoulder; abrasion right eye brow; abrasion left clavicular region; multiple injuries all over the body; and head injury. The appellant had undergone inpatient treatment for a period of 8 days. The Tribunal awarded a sum of Rs.2,000/- towards medical expenses, as against Ext.A6 medical bill. 16. The Tribunal awarded no compensation towards loss of earning. Considering the nature of injuries sustained and the treatment the appellant had undergone, the appellant can be granted compensation for loss of earning for a period of two months, since he was a manual labourer. Since the monthly income of the appellant is fixed notionally as Rs.8,000/-, he is granted a sum of **Rs.16,000/-** (8,000 x 2) towards loss of earning. 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. The accident is of the year 2011. Towards transportation to hospital, **MACA.No.4687 OF 2019(A)** 9 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.2,000/-, resulting an additional compensation of **Rs.1,000/-** (2,000 – 1,000). 18. Towards bystander expenses the Tribunal awarded a sum of Rs.3,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2011 and the appellant had undergone inpatient treatment for 8 days. 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 cannot be said to be on the lower side, which requires no enhancement in this appeal. 19. 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 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 **MACA.No.4687 OF 2019(A)** 10 under this head. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.17,000/-** (Rupees seventeen thousand only) [16,000 + 1,000] 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, 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 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 **MACA.No.4687 OF 2019(A)** 11 copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** JV **JUDGE**