Suraj @ Sooraj v. Sathyan A.P. and others (MACA.No.2179 of 2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** **MACA.No.2179 OF 2008** **AGAINST THE AWARD IN O.P.(MV) NO.11/2003 DATED 29-04-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA.** ## **APPELLANT/PETITIONER IN O.P(MV):** **SURAJ @ SOORAJ, S/O.THANDASSERY RAMANKUTTY, ALATHUR DESOM, NELLAYI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS IN O.P.(MV):** **1 SATHYAN A.P., ELUVATHINGAL HOUSE, MURIYAD.P.O, VIA. KALLETTUMKARA. 2 SUBRAMANIAN, S/O.NAMBUKULANGARA AYYAPPAN, ALATHUR, ANANDAPURAM. 3 ORIENTAL INSURANCE CO.LTD., KPN SHOPPING COMPLEX, OPP.THIRUVAMBADY TEMPLE, SHORNUR ROAD, THRISSUR. R3 BY ADV. SRI.P.JAYASANKAR R2 BY ADV. SRI.T.N.MANOJ R3 BY ADV. SRI.N.S.NAJEEB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2179 OF 2008** -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.11 of 2013 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 06.06.2002, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-8/P-809 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the motorcycle hit on a culvert. In the accident, the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner filed written statement admitting the accident. The 1[st] respondent contended that the vehicle was taken from his custody by the 2[nd] respondent rider, without his knowledge and permission. **MACA.No.2179 OF 2008** -3- 3. The 2[nd] respondent rider filed written statement denying the negligence alleged against him. 4. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the motorcycle involved in the accident; however, contending that the insurance policy does not cover the risk of a pillion rider. The insurer has also pointed that at the time of accident, the 2[nd] respondent was riding the motorcycle without a valid driving licence. 5. Before the Tribunal, Exts.A1 to A5 were marked on the side of the appellant/claimant. On the side of the respondents, Ext.B1 insurance policy was marked. Both sides have not chosen to adduce any oral evidence. 6. 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 motorcycle by the 2[nd] respondent rider. Ext.A2 charge sheet was produced before the Tribunal, as per which the 2[nd] respondent was charge sheeted for riding the motorcycle without a valid driving licence. On a finding that Ext.B1 insurance policy will not cover the risk of pillion rider; the Tribunal exonerated the 3[rd] respondent insurer from the liability. Under various heads, **MACA.No.2179 OF 2008** -4- the Tribunal awarded a total compensation of Rs.62,900/- and respondents 1 and 2 are held jointly and severally liable to pay the said amount, together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads and also the finding of the Tribunal in exonerating the 3[rd] respondent insurer from the liability to pay the amount of compensation, the appellant/claimant is before this Court in this appeal. 8. Heard the learned counsel for the appellant/ claimant, the learned counsel for the 2[nd] respondent and also the learned Standing Counsel for the 3[rd] respondent/insurer. 9. 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 and whether the finding of the Tribunal in exonerating the 3[rd] respondent insurer can be sustained. 10. 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.2179 OF 2008** -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. 11. 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- **MACA.No.2179 OF 2008** -6- ## violation of the principle of equitability. 12. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|The compensation claimed<br>under various heads|Amount allowed|Basis/vital details in<br>a nutshell| |---|---|---|---| |1|Loss of earning|8,000/-|2000 x 4 months| |2|Bystander expenses|4,200/-|| |3|Extra nourishment|---|| |4|Transportation expenses|500/-|| |5|Medical expenses|27,200/-|| |6|Pain and suffering|15,000/-|| |7|Loss of amenities|8,000/-|| |8|Damage to clothing|---|| ||**TOTAL**|**62,900/-**|| 13. The accident occurred on 06.06.2002. At the time of accident, the appellant was aged 25 years. He claimed a monthly income of Rs.4,000/- as cleaner in a lorry. 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.2,000/-, for the purpose of assessing compensation under various heads. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **MACA.No.2179 OF 2008** -7- **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. 15. 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)** , **MACA.No.2179 OF 2008** -8- 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. 16. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2002, 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.3,500/-, for the purpose of assessing compensation under various heads. 17. The document marked as Ext.A3 is the wound **MACA.No.2179 OF 2008** -9- certificate. As evident from Ext.A3, in the accident, the appellant sustained abrasion over the left side of face and lacerations over the left parietal area of scalp. He had undergone inpatient treatment for a period of 42 days and the case was diagnosed as fracture of left clavicle besides head injury. C.T. investigation revealed subarchnoid haemorrhage and diffuse cerebral oedema. No documents were produced before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability. Ext.A5 series of medical bills are for a sum of Rs.27,200/-. 18. 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 appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed as Rs.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.21,000/-, resulting an additional compensation of **Rs.13,000/-** (21,000 - 8,000). 19. On account of the injuries sustained in the **MACA.No.2179 OF 2008** -10- accident, the appellant had undergone inpatient treatment for 42 days. The accident is of the year 2002. 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.2,500/-, resulting an additional compensation of **Rs.2,000/-** (2,500 - 500). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.4,200/- (100 x 42). The Tribunal awarded no amount towards extra nourishment. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 42 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 the head bystander expenses is re-fixed as Rs.6,300/- (150 x 42), resulting an additional compensation of **Rs.2,100/-** (6,300 - 4,200). A further sum of **Rs.4,200/-** (100 x 42) is granted as compensation under the head extra nourishment. 21. The Tribunal awarded no amount towards damage **MACA.No.2179 OF 2008** -11- to clothing. Considering the fact that the accident is of the year 2002, this Court deem it appropriate to grant a sum of **Rs.750/-** as compensation under this head. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.27,200/-, covered by Ext.A5 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.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 the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.10,000/-** (25,000 - 15,000) under this head. 24. Towards loss of amenities, the Tribunal awarded a sum of Rs.8,000/-. No documents were produced before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability. In the absence of **MACA.No.2179 OF 2008** -12- any such materials, 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. 25. Another challenge made in this appeal is against exoneration of the 3[rd] respondent insurer from the liability to pay the amount of compensation to the appellant. Before the Tribunal, the 3[rd] respondent insurer contended that though Ext.B1 insurance policy is a comprehensive policy, in the absence of payment of additional premium to cover the risk of pillion rider, the insurer cannot be held liable to indemnify the insured. The said issue is no more _res integra_ in view of the decision in **New India Assurance Company Ltd. v. Hydrose and others [2008 (3) KLT 778]** . Therefore, the above reasoning of the Tribunal for exonerating the 3[rd] respondent insurer cannot be sustained. 26. However, it has to be noticed that in Ext.A2 charge sheet, the 2[nd] respondent rider of the motorcycle was charge sheeted by the Police for riding that vehicle without a valid and effective driving licence, which amounts to the violation of the conditions of policy. Therefore, the 3[rd] respondent insurer is entitled for recovery right against the 1[st] respondent for the **MACA.No.2179 OF 2008** -13- amount of compensation paid to the appellant/claimant. 27. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.32,050/-** (Rupees thirty two thousand and fifty only) [13,000 + 2,000 + 2,100 + 4,200 + 750 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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. In view of the finding to the violation of the conditions of policy, the 3[rd] respondent insurer will be entitled to proceed against the 1[st] respondent owner for recovering the amount of compensation paid to the appellant/claimant, together with interest. The 3[rd] respondent insurer has to satisfy the compensation awarded by the Tribunal and also the additional compensation granted in this appeal. The disbursement of 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 **MACA.No.2179 OF 2008** -14- 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 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