Sivarman v United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** # **MACA.No.2707 OF 2017(A)** **AGAINST THE AWARD IN O.P.(MV) NO.990/2012 DATED 04-10-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI.** ## **APPELLANT/PETITIONER:** **SIVARAMAN, AGED 50 YEARS, S/O.THEYYUNNI, THRIPPANACHI HOUSE, MELEKALIKAVU, P.O.KALIKAVU, MALAPPURAM-676525.** ## **BY ADV. SRI.K.M.MOHAMED ABDURAHIMAN** ## **RESPONDENT/3RD RESPONDENT:** **UNITED INDIA INSURANCE CO.LTD., MICRO OFFICE, KP 111/1093, CITY CENTRE, KONDOTTY, MALAPPURAM-673 638.** ## **SRI.P.K.MANOJ KUMAR- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2707 OF 2017(A)** -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.990 of 2012 on the file of the Motor Accidents Claims Tribunal, Manjeri, 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 03.06.2012, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-18/C-897. At the place of accident, the motorcycle was hit by another motorcycle bearing registration No.KL-57/A-1527 ridden by the 1[st] respondent and owned by the 2[nd] 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 riding of the offending motorcycle by the 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,00,000/- under various heads. 2. Before the Tribunal, the owner and rider of the offending motorcycle did not file any written statement. 3. The respondent insurer filed written statement **MACA.No.2707 OF 2017(A)** -3- admitting insurance coverage of the offending motorcycle; however, denying negligence alleged against the rider of the offending motorcycle. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A10 were marked on the side of the appellant/claimant. 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 riding of the offending motorcycle by its rider. 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.1,29,091/-, which was rounded off to Rs.1,30,000/-, together with interest at the rate of 9% per annum from the date of petition, i.e., 22.09.2012 till date of deposit, and the respondent insurer was directed to satisfy the award. **MACA.No.2707 OF 2017(A)** -4- 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 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 **MACA.No.2707 OF 2017(A)** -5- 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 non-violation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded<br>(in rupees)|Basis-vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning|30,000/-|26,400/-|(8,800 x 3)| |2|Partial loss of earning|Nil|Nil|| |3|Transport to hospital|5,000/-|5,000/-|| ## **MACA.No.2707 OF 2017(A)** -6- |4|Extra nourishment|3,000/-|1,500/-|(250 x 6)| |---|---|---|---|---| |5|Damage to clothing and<br>articles|1,000/-|1,000/-|| |6|Bystander expenses|5,000/-|2,100/-|(350 x 6)| |7|Medical expenses|60,000/-|48,091/-|Ext.A9 series| |8|Future<br>treatment<br>(implant removal)|Nil|25,000/-|| |9|Pain and suffering|20,000/-|20,000/-|| |10|Continuing or permanent<br>disability, if any|1,90,000/-|Nil|| |11|Loss of earning power|60,000/-|Nil|| ||Total claim<br>Limited to|`**4,00,000/**|`**1,29,091/-**<br>**(rounded to**<br>`**1,30,000/-**|| 12. The accident occurred on 03.06.2012. At the time of accident, the appellant was aged 45 years. He claimed a monthly income of Rs.17,500/- as lorry driver. A copy of the driving licence was marked as Ext.A10. 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.8,800/-, 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 **MACA.No.2707 OF 2017(A)** -7- 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 (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the **MACA.No.2707 OF 2017(A)** -8- 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 Rs.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 2012, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the notional monthly income of Rs.8,800/fixed by the Tribunal cannot be said to be on the lower side, which requires no enhancement in this appeal. 16. The document marked as Ext.A2 is the wound certificate and Exts.A5 and A6 are discharge summaries. As per medical records, in the accident, the appellant sustained **MACA.No.2707 OF 2017(A)** -9- Type III open fracture tibia both bones right leg; contused lacerated wound 3x1cm over distal right leg; contused lacerated wound 1x1cm over distal right leg; and multiple abrasions. He had undergone inpatient treatment for a period of 6 days. Ext.A9 series of medical bills are for a sum of Rs.48,091/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.26,400/-, at the rate of Rs.8,800/- 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 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.8,800/-, the compensation under the head loss of earning is re-fixed as Rs.52,800/- (8,800 x 6), resulting an additional compensation of **Rs.26,400/-** (52,800 - 26,400). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 6 days. The accident is of the year 2012. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. **MACA.No.2707 OF 2017(A)** -10- 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.2,100/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500/-. The accident is of the year 2012 and the appellant had undergone inpatient treatment for 6 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. Therefore, the appellant is not entitled for any enhancement under this head. 20. Towards future treatment expenses, the Tribunal awarded a sum of Rs.25,000/-. No materials are placed on record to show any expense incurred by the appellant towards future treatment. In the absence of any such materials, the compensation awarded by the Tribunal under this head cannot **MACA.No.2707 OF 2017(A)** -11- be said to be on the lower side, which requires no enhancement in this appeal. 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2012, the compensation under this head is re-fixed as Rs.1,250/-, resulting an additional compensation of **Rs.250/-** (1,250 - 1,000). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.48,091/-, covered by Ext.A9 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. **MACA.No.2707 OF 2017(A)** -12- 24. The Tribunal awarded no compensation under the heads permanent disability and loss of amenities. No materials were placed before the Tribunal to prove any permanent disability of the appellant, on account of the injuries sustained in the accident. In the absence of any such materials, the Tribunal cannot be found fault with in not granting any compensation under these heads. 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.26,650/-** (Rupees twenty six thousand six hundred and fifty only) [26,400 + 250] 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 **MACA.No.2707 OF 2017(A)** -13- issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. The appellant shall submit 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** bpr