Sujith Sreevalsan v. P.D. Sumesan and United India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **MACA.No.1020 OF 2010** **AGAINST THE AWARD IN OP(MV)No.703/2002 DATED 22-10-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** **SUJITH SREEVALSAN, SHEETHAL 17/21, BANK ROAD, KOZHIKODE.** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENTS/RESPONDENTS:** **1 P.D.SUMESAN S/O. DIVAKARAN, PALAT HOUSE, 5/274, CIVIL STATION, KOZHIKODE. 2 THE UNITED INDIA INSURANCE CO.LTD. MAVOOR ROAD JUNCTION, KOZHIKODE.** **R2 BY SRI.P.K.MANOJKUMAR,SC, UNITED INDIA INSURANCE CO. LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 1020 of 2010 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.703 of 2002 on the file of the Motor Accidents Claims Tribunal, Kozhikode, 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 11.11.2001, while he was riding a motorcycle bearing registration No.KL-11/H-3183. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-11/J4345 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,75,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent filed written statement admitting the accident; however, denying the MACA. No. 1020 of 2010 -3- negligence alleged against him. He contended that the accident occurred due the negligence on the part of the appellant/claimant in riding the motorcycle. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying negligence alleged against the 1[st] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. 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. 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 the 1[st] respondent 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.29,127/-, together with MACA. No. 1020 of 2010 -4- interest at the rate of 7% per annum from the date of petition, till date of deposit, excluding the period from 07.04.2007 (the date on which the claim petition was dismissed for default) to 16.09.2009 (the date on which it was restored to file), with a cost of Rs.600/-, and 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 and also the learned Standing Counsel for the 2[nd] 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 MACA. No. 1020 of 2010 -5- 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 brought on record in an individual case. The MACA. No. 1020 of 2010 -6- 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; |Transport to hospital|500| |---|---| |Damage to clothing|250| |Loss of earnings|6000| |Bystanders expenses|2000| |Treatment expenses|447| |Pain and suffering|18000| |Loss of amenities|2000| |**Total**|**29,127/-**| 12. The accident occurred on 11.11.2001. At the time of accident, the appellant was aged 28 years. The appellant claimed a monthly income of Rs.5,000/-, as a businessman. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. ## 13. In **Ramachandrappa v. Manager, Royal** MACA. No. 1020 of 2010 -7- ## **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. 1020 of 2010 -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. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2001, and taking note of the fixation of notional monthly income by the Apex Court in the MACA. No. 1020 of 2010 -9- decisions referred to supra, the notional monthly income fixed by the Tribunal as Rs.3,000/- is just and reasonable, which warrants no interference in this appeal. 16. As per Ext.A7 wound certificate, the appellant sustained blunt injury abdomen with extensive retroperiotonsal haematoma with serosal tear-caecum and contusion I and II Part of duodenum and inter peritoneal bleed. Pelvis with both HP and AP bilateral public rami fracture-superior and inferior. Transverse fracture sacrum, undisplaced fracture right acelabulum, compression fracture LI vertebra, fracture right transverse process of L5. Fat embolism, Lumbosacral spine; fracture L1, fracture transverse proceeds L5. Ext.A5 would show that the appellant was taken with above said injuries was admitted and treated at Baby Memorial Hospital till 30.11.2001. As per Ext.A2 discharge summary, the appellant was admitted on 11.11.2001 and discharged on 30.11.2001. Surgery was conducted on 12.11.2001. 17. Towards loss of earning, the Tribunal awarded a MACA. No. 1020 of 2010 -10- sum of Rs.6,000/-, at the rate of Rs.3,000/- per month for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from Exts.A5 and A7, the period of 5 months fixed by the Tribunal for granting loss of earning is just and reasonable. Therefore, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (3,000 x 5), resulting an additional compensation of **Rs.9,000/-** . (15,000-6000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 19 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. 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.1,000/-, resulting an additional compensation of **Rs.500** /- (1,000 - 500) under this head. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as MACA. No. 1020 of 2010 -11- borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.2,850/- (150 x 19), resulting an additional compensation of **Rs.850/-** (2,850 – 2,000). 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2001, 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.447/-. Ext.A6 series are medical bills for a sum of Rs.58,325/-. On verification the Tribunal found that the medical bills for Rs.57,878/- are duplicate or photocopy. Therefore, after excluding those bills, a sum of Rs.447/- was awarded towards treatment expenses. In the absence of any reliable 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 MACA. No. 1020 of 2010 -12- Tribunal awarded a sum of Rs.18,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from Exts.A5 and A7, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.25,000, resulting an additional compensation of **Rs.7,000** /- (25,000 – 18,000). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.2,000/-. Though no disability certificate is produced, considering the nature of injuries sustained the compensation awarded by the Tribunal under this head refixed as Rs.7,500/-, resulting an additional compensation of **Rs.5,500/-** (7,500 - 2,000). 24. The Tribunal, in the impugned award, excluded interest for the award amount for the period from 07.04.2007, the date on which the claim petition was dismissed for default to 16.09.2009, the date on which it was restored to file. 25. In **Jacob Thomas v. Pandian [2005 (4) KLT 545]** a Full Bench of this court held that, when a claim filed under Section 166 of the Motor Vehicles Act, 1988 read with MACA. No. 1020 of 2010 -13- Rule 371 of the Kerala Motor Vehicles Rules 1989 and it is not dismissed under Rule 373, the Claims Tribunal after issuing notice to the respondents, even if the claimant is absent or the respondents absent, has got the power to proceed with the case either by collecting evidence as provided under subrule (5) of Rule 378 or dispose of the case under order IX of the Code of Civil Procedure, 1908 read with Rule 395 of the Kerala Motor Vehicles Rules. Hence, the view that after framing issues the Tribunal cannot dismiss the application for default under no circumstances is not correct. Where the Tribunal is genuinely satisfied that there are contumacious laches on the part of the claimants in prosecuting their claims and where the claimants are not interested in prosecuting their cases, the Tribunal can dismiss the application using Order IX, Rule 9 of the Code in appropriate cases. To the above extent, the decisions in **Lukose v. Govindan Nair [1990 (1) KLT 378]** and **Saramma Scaria and others v. Mathai and another [2002 (2) KLT 404]** are overruled by the Full Bench. MACA. No. 1020 of 2010 -14- 26. When the Tribunal has the power to dismiss a claim petition invoking Order IX, Rule 9 of the Code of Civil Procedure, 1908 read with Rule 395 of the Kerala Motor Vehicles Rules, where the Tribunal is satisfied that there are contumacious laches on the part of the claimants in prosecuting their claims and where the claimants are not interested in prosecuting their claims, the Tribunal can certainly impose appropriate conditions for restoration of a claim petition dismissed for default. In appropriate cases, the Tribunal can impose conditions denying interest for the award amount for the period of delay in filing the application for restoration, etc. In the absence of any vitiating circumstances pointed out in the order of the Tribunal, declining interest for the period from 07.04.2007 to 16.09.2009, the appellant is not entitled for interest on the compensation awarded by the Tribunal and also on the additional compensation granted in this appeal, for the aforesaid period. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.23,350/-** (Rupees MACA. No. 1020 of 2010 -15- twenty three thousand three hundred and fifty only) [9,000 + 500 + 850 + 500 + 7,000 + 5,500] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period from 07.04.2007 to 16.09.2009. 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. The disbursement of the amount to the appellant shall be 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. This appeal is disposed of as above. No order as to costs. **==> picture [30 x 11] intentionally omitted <==** **ANIL K.NARENDRAN JUDGE** das