Subaida Beegum S. & Others v. The Managing Director, Kerala State Road Transport Corporation and The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941** **MACA.No.797 OF 2013** **AGAINST THE AWARD IN OPMV 413/2001 DATED 21-12-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA** ## **APPELLANTS:** - **1 SUBAIDA BEEGUM S., KADAYIL VEEDU, ERUVA MURI, KAYAMKULAM.** - **2 SHAM RAJ, KADAYIL VEEDU, ERUVA MURI, KAYAMKULAM.** - **3 SHAN BABU, KADAYIL VEEDU, ERUVA MURI, KAYAMKULAM.** - **4 REENA BEEGUM, KADAYIL VEEDU, ERUVA MURI, KAYAMKULAM. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN** - **:** - **1 SASI (DELETED), POTHANATHARA HOUSE, KARUVALIPADY, KOCHI - 682 001. (THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 3/08/2017 IN IA NO 2744/2017 IN MACA 797/2013)** ## **RESPONDENTS:** - **2 THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM - 695 001.** - **3 THE NATIONAL INSURANCE COMPANY LIMITED THIRUVANANTHAPURAM - 695 001.** **R2 BY ADV. SMT.BIMALA BABY, SC, KSRTC R2 BY ADV. SRI.P.C.CHACKO(PARATHANAM) R3 BY ADV. SMT.P.A.REZIYA SRI T.P.SAJAN- STANDING COUNSEL- KERALA STATE ROAD TRANSPORT CORPORATION** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.797 of 2013 2 ## **JUDGMENT** The appellants are the legal representatives of the deceased original claimant in O.P(MV)No.413 of 2001 on the file of the Motor Accidents Claims Tribunal, Mavelikkara, 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 08.06.2000, while he was travelling in a jeep bearing registration No.KL-01/J-6298. At the place of accident, the jeep was hit by a KSRTC bus bearing registration No.KL-15/3248 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 KSRTC bus by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,03,500/- under various heads, which was limited to Rs.4,80,000/- for the purpose of payment of Court Fee. During the pendency of the claim petition, the original claimant died and his legal representatives were impleaded as additional claimants 2 to 5. MACA No.797 of 2013 3 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 the 1[st] respondent driver. 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the bus involved in the accident; however, denying the negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and negligent driving of the jeep by its driver. 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, the claim petition was tried along with the connected matter. Exts.A1 to A15 were marked on the side of the claimants and PWs.1 to 3 were examined. The respondents have not chosen to adduce any oral or documentary evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident MACA No.797 of 2013 4 occurred due to the rash and negligent driving of the bus 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.1,34,750/-, together with interest at the rate of 7.5% per annum from the date of petition till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/additional claimants 2 to 5 are before this Court in this appeal. 7. Heard the learned counsel for the appellants/ additional claimants 2 to 5, the learned Standing Counsel for KSRTC for the 2[nd] respondent 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 appellants are entitled for enhancement of the compensation awarded by the Tribunal under various heads. 9. In **State of Haryana v. Jasbir Kaur [(2003) 7** MACA No.797 of 2013 5 **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 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 MACA No.797 of 2013 6 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; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earnings|72,000/-|8,000/-|| |2|Medical expenses|1,50,000/-|85,000/-|| |3|Bystander's expense|30,000/-|3,000/-|| |4|Transportation charges|4,000/-|2,000/-|| |5|Extra nourishment|2,000/-|1,500/-|| |6|Damage to clothing|500/-|250/-|| |7|Pain and sufferings|50,000/-|25,000/-|| |8|Permanent disability|1,20,000/-|Nil|Injured died| |9|Loss of amenities|75,000/-|10,000/-|| ||Total|5,03,500/-<br>(limited to<br>4,80,000/-)|1,34,750/-|| 12. The accident occurred on 08.06.2000. At the time of accident, the original claimant was aged 55 years. He claimed a monthly income of Rs.4,000/- as the Manager of an aluminium factory. No materials were produced before the Tribunal to prove the monthly income of the original claimant. The 3[rd] appellant was examined as PW2. In the absence of any MACA No.797 of 2013 7 reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,000/-, 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 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 MACA No.797 of 2013 8 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 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 2000, and taking note of the fixation of MACA No.797 of 2013 9 notional monthly income by the Apex Court in the decisions referred to supra and also the evidence from PW2, this Court deem it appropriate to re-fix the monthly income of the original claimant notionally as Rs.2,750/-, for the purpose of assessing compensation under various heads. 16. As per medical records, the original claimant sustained fracture of colles (left); Type II comminuted fracture of right femur; lacerated wound on right thigh and left wrist; lacerated wound 2x3cm posterior aspect of right thigh; and contusion and abrasion on the interior aspect of left leg. The document marked as Ext.A9 is the discharge summary. The original claimant had undergone inpatient treatment for a period of 31 days. He had undergone skeletal traction, open reduction and internal fixation for fracture of right femur. POP cast was applied for fracture of colles (left). His lower and upper limbs were immobilised for 45 days. There was subluxation of left wrist, resulting severe pain and restricted movement. Nailing was done for fracture of right femur. After discharge he continued follow-up treatment. Callus formation was found at fracture site. Exts.A10 and A11 series of medical MACA No.797 of 2013 10 bills are for a sum of Rs.85,000/-. 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 original claimant 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 6 months. Since the monthly income of the original claimant is re-fixed notionally as Rs.2,750/-, the compensation under the head loss of earning is re-fixed as Rs.16,500/- (2,750 x 6), resulting an additional compensation of **Rs.8,500/-** (16,500 – 8,000). 18. On account of the injuries sustained in the accident, the original claimant had undergone inpatient treatment for 31 days. The accident is of the year 2000. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the original claimant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.3,500/-, resulting an additional compensation of **Rs.1,500/-** (3,500 - 2,000). MACA No.797 of 2013 11 19. Towards bystander expenses the Tribunal awarded a sum of Rs.3,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500. The accident is of the year 2000 and the original claimant had undergone inpatient treatment for 31 days. Considering the nature of injuries sustained and the treatment the original claimant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.4,650/- (150 x 31), resulting an additional compensation of **Rs.1,650/-** (4,650 - 3,000). The compensation under the head extra nourishment is re-fixed as Rs.3,100/- (100 x 31), resulting an additional compensation of **Rs.1,600/-** (3,100 - 1,500). 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2000, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.85,000/-, covered by Exts.A10 and A11 series of MACA No.797 of 2013 12 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 original claimant 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 appellants are not entitled for any enhancement under this head. 23. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. No documents were placed on record before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability to the original claimant. Considering the nature of injuries sustained, as borne out from medical records, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 24. In the result, the appellants/additional claimants 2 to MACA No.797 of 2013 13 5 will be entitled for payment of an additional compensation of **Rs.13,750/-** (Rupees Thirteen Thousand Seven Hundred and Fifty only) [8,500 + 1,500 + 1,650 + 1,600 + 500] 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 719 days in filing this appeal, which was condoned by the order dated 25.03.2019, subject to the condition that the appellants will not be entitled to claim interest for the enhanced compensation, if any, granted in the appeal for the period of delay. The additional compensation granted in this appeal shall be paid to the 1[st] appellant/additional 2[nd] claimant, who is the wife of the deceased original claimant. 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 claimants towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the 1[st] appellant/additional 2[nd] claimant shall be made taking note of the law on the point and in terms of the directives issued by MACA No.797 of 2013 14 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 1[st] appellant/additional 2[nd] claimant shall provide her 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** yd