Suraj v. Abdul Salam; Abdul Samad; The Oriental Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** ## **MACA.No.1926 OF 2015** **AGAINST THE AWARD DATED 08.04.2014 IN OP(MV) 96/2013 AND THE ORDER DATED 29.5.2014 IN REVIEW PETITION IA NO.1461/2014 IN OP(MV)96/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **- APPELLANT/PETITIONER PETITIONER:** **SURAJ AGED 34 YEARS S/O.SUBRAMANIAN, ANGADIYIL HOUSE, PALAPPURAM, OTTAPALAM 679 103.** **BY ADV. SRI.R.SREEHARI** ## **- RESPONDENTS/RESPONDENTS RESPONDENTS:** - ***[1 ABDUL SALAM, AGED 45 YEARS S/O.UMMER HAJI, VADAKKETHIL VEEDU, KODANAD, MEZHATHOOR, TRITHALA POST, PALAKKAD DISTRICT PIN 679 534.** - **2 ABDUL SAMAD, AGE NOT KNOWN S/O.KUNJI MOHAMMED, VVADAKKETHIL VEEDU, KOOTTANAD, PATTAMBI,PALAKKAD DISTRICT PIN 679 533]*** ## **(DELETED)** **[RESPONDENTS 1 & 2 ARE DELETED FROM PARTY ARRAY AS PER ORDER DATED 15.11.2019 IN IA 1/2019** - **3 THE ORIENTAL INSURANC COMPANY LIMITED, DIVISIONAL OFFICE, PALAKKAT BUILDINGS, MARKET JUNCTION, TRIPUNITHURA 682 301.** **R3 BY ADV. SRI.P.J.ANTONY JOSEPH MARIADAS R3 BY ADV. SRI.R.PADMARAJ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1926 OF 2015** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.96 of 2013 on the file of the Motor Accidents Claims Tribunal, Ottapalam, 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 22.10.2012, while he was riding in a motorcycle. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-52/D-583 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] 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 **MACA.No.1926 OF 2015** 3 claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant. 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 occurred due to the rash and negligent driving of the car by the 1[st] respondent driver. Since insurance coverage of the offending 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.41,300/-, together with interest at the rate of 9% per annum from the date of petition, i.e., 22.2.2013 till the date of realisation, with proportionate cost. The said award was reviewed by order dated 29.5.2014, by awarding a total compensation of Rs.91,600/-. The 3[rd] respondent insurer was directed to satisfy the award within 30 days. 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 **MACA.No.1926 OF 2015** 4 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 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 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 **MACA.No.1926 OF 2015** 5 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 Rs.)|Amount<br>awarded<br>(in Rs.)|Basis-vital details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earning (total)|18,000|8,000|4000x2| |2|Loss of earning(partial)|--|--|| |3|Medical and<br>miscellaneous expenses|50,000|15,600|Admitted medical bills<br>for<br>Rs.15,598/-<br>produced. Rounded to<br>Rs.15,600/-| |4|Future treatment|7,000|Nil|| |5|Bystander expenses|3,000|600|3x200| |6|Transportation<br>expenses|1,500|1,000|| |7|Extra nourishment|4,000|600|| |8|Damage to clothingetc.|500|500|| |9|Pain and suffering|20,000|10,000|[Lt.] acromia clavicular<br>joint dislocation| |10|Loss of dependency|--|--|| **MACA.No.1926 OF 2015** 6 |11|Loss of consortium|--|--|| |---|---|---|---|---| |12|Loss of love and<br>affection|--|--|| |13|Loss of estate|--|--|| |14|Loss/reduction in<br>earningcapacity|12,000|Nil|Not proved| |15|Loss of amenities and<br>conveniences etc|10,000|5,000|| |16|Compensation for<br>continuing or<br>permanent disability|24,000|Nil|Not proved| ||total|1,50,000|41,300|| ||Limited to|1,50,000||| 12. The accident occurred on 22.10.2012. At the time of accident, the appellant was aged 29 years. The appellant claimed a monthly income of Rs.6,000/- as Salesman. 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.4,000/-, 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 **MACA.No.1926 OF 2015** 7 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 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 **MACA.No.1926 OF 2015** 8 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 2012, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.6,000/- claimed by the appellant is not on the higher side, which is taken as his notional monthly income, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A6 is the wound certificate. Ext.A7 is the medical certificate and Ext.A8 is the discharge summary. As per medical records, the appellant had sustained (Lt.) acromia clavicular joint dislocation. He had undergone inpatient treatment for a period of three days, which was followed by another inpatient treatment for a period of 4 days for implant removal. Ext.A9 series of medical bills are for a sum of **MACA.No.1926 OF 2015** 9 Rs.15,598/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000/-, at the rate of Rs.4,000/- 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 medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 3 months. Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, the compensation under the head loss of earning is re-fixed as Rs.18,000/- (6,000 x 3), resulting an additional compensation of **Rs.10,000/-** (18,000 – 8,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 7 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs1,000/-. 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.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500 – 1,000). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.600/- (200 x 3). Towards extra nourishment, the **MACA.No.1926 OF 2015** 10 Tribunal awarded a further sum of Rs.600/-. The accident is of the year 2012 and the appellant had undergone inpatient treatment for 7 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.1,750/- (250 x 7), resulting an additional compensation of **Rs.1,150/-** (1,750 - 600). The compensation under the head extra nourishment is re-fixed as Rs.1,050/- (150 x 7), resulting an additional compensation of **Rs.450/-** (1,050 – 600). 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2012, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.15,600/-, 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. 22. As compensation towards pain and suffering, the **MACA.No.1926 OF 2015** 11 Tribunal awarded a sum of Rs.10,000/-. 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 refixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. No documents were produced before the Tribunal to prove any permanent disability on account of the injuries sustained in the accident. Therefore the compensation awarded by the Tribunal under this head is just and reasonable, which requires no enhancement in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.19,100/-** (Rupees nineteen thousand and one hundred only) [10,000 + 1,500 + 1,150 + 450 + 1,000 + 5,000] 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 289 days, which was condoned vide order dated 15.11.2019 in C.M.Application No.2149 of 2015, subject to the condition that in case any enhanced compensation is awarded, the appellant will not be entitled for interest for said **MACA.No.1926 OF 2015** **==> picture [13 x 7] intentionally omitted <==** amount for the period of delay. 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per 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. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** JV