Udayakumar Vallompparambil (Udayabhavan) v. Moncy alias Thomas K. Abraham, Sainu Philip Karikkara House; Bajaj Allianz General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941** ## **MACA.No.2965 OF 2008** **AGAINST THE AWARD IN OP(MV)No. 1583/2006 DATED 22-04-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/PETITIONER :** **UDAYAKUMAR VALLOMPARAMBIL (UDAYABHAVAN), AREEPARAMBU KARA, MANARCADU VILLAGE, KOTTAYAM.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE** ## **RESPONDENTS/RESPONDENTS:** |**1**|**MONCY @ THOMAS K.ABRAHAM**| |---|---| ||**KALLUMPURATHU VEEDU, MADATHUMPADY BHAGOM,,**| ||**PAZHAVANGADI KARA AND VILLAGE,, RANNI TALUK,**| ||**PATHANAMTHITTA.**| |**2**|**SAINU PHILIP KARIKKARA HOUSE**| ||**KOTTOOR.P.O, THIRUVALLA,, THALAYOOR, PATHANAMTHITTA.**| |**3**|**BAJAJ ALLIANCE GENERAL INSURANCE**| ||**COMPANY LTD., T.C 28/2222 (5), M.G. ROAD,,**| ||**PAZHAVANGADI, THIRUVANANTHAPURAM.**| ## **R3 BY ADV. SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2965 OF 2008** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1583 of 2006 on the file of the Motor Accidents Claims Tribunal, Kottayam, 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 23.05.2006, while he was riding a motorcycle bearing registration No.KL-5/J-7359. At the place of accident, a car bearing registration No.KL-03/K5921, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent, hit on the motorcycle ridden by the appellant/claimant. 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 driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed a written statement admitting insurance **MACA.No.2965 OF 2008** **3** coverage of the vehicle; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the amount of compensation claimed is highly excessive and without any basis. 3. Before the Tribunal, Exts.A1 to A9 were marked on the side of the claimant. Both sides have not chosen to adduce any oral evidence. 4. 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 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.26,500/-, together with interest at the rate of 7% per annum from the date of petition, i.e., 15.09.2006 till date of payment, with a cost of Rs.2,100/- and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before **MACA.No.2965 OF 2008** **4** this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. 7. 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. 8. 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 **MACA.No.2965 OF 2008** **5** the same should not be a pittance. 9. 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. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Head|Amount allowed| |---|---| |Transportation|Rs.1,000/-| |Damage to clothing|Rs.1,000/-| |Extra nourishment|Rs.500/-| |Bystander's expenses|Rs.1,000/-| |Treatment expenses|Rs.4,000/-| |Loss of earnings|Rs.5,000/-| **MACA.No.2965 OF 2008** **6** Pain and sufferings Rs.10,000/Loss of amenities Rs.4,000/- **Total Rs.26,500/-** 11. The accident occurred on 23.05.2006. At the time of accident, the appellant was aged 35 years. He claimed a monthly income of Rs.6,000/- as Head Constable in Police Service. No documents were produced before the Tribunal to prove the monthly income of the appellant. He has also not chosen to mount the box. The Tribunal took the monthly income of the appellant notionally as Rs.5,000/-. 12. 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 **MACA.No.2965 OF 2008** **7** 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. 13. 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 **MACA.No.2965 OF 2008** **8** 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. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2006, 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.5,500/-, for the purpose of assessing compensation under various heads. 15. Ext.A3 wound certificate issued from Matha Hospital, Thellakom, would show that, in the accident, the appellant sustained lacerated wound (L) heel 3x2 cm, ligament injury right knee with grade III instability. Ext.A4 discharge summary would show that the appellant had undergone inpatient treatment for the period from 23.05.2006 to 25.05.2006. The injuries noted in Ext.A4 are grade III instability medial collateral ligament right knee **MACA.No.2965 OF 2008** **9** and lacerated wound (L) heel. The treatment included wound debridement, suturing under local anesthesia application of A/K POP slab for right knee for three weeks and supportive drugs. Subsequently, there was outpatient treatment on 31.05.2006. Ext.A5 is a medical certificate dated 22.06.2006, recommending absence of duty for a period of one month from 22.06.2006. Ext.A6 is another copy of medical certificate dated 22.06.2006 recommending the same period of absence from duty. Ext.A8 series are medical bills for Rs.3,772/-. 16. Ext.A7 is the medical certificate issued by Dr.C.Padmakumar, Consultant Orthopaedic Surgeon, Government Medical College Hospital, Kottaym. As per Ext.A7, in the accident, the appellant sustained Grade III instability medial collateral ligament right knee and lacerated wound (L) heel. He was treated with wound debridement, suturing, above knee POP slab and other supportive measures. The plaster was removed after three months and mobilization of the right knee started. It took another six weeks for him to regain a reasonable strength **MACA.No.2965 OF 2008** ## **10** and mobility in the right lower limb. The period of total temporary disability is 3 weeks from the date of injury and the period of partial temporary disability is another six weeks following the above period. On 06.03.2007, on examination it was found that, there was quadriceps wasting on the right side and the right knee flexion was restricted to 110[o] . There was moderate valgus instability in the right knee and the appellant cannot squat. In Ext.A7, the permanent disability of the appellant on account of the injuries sustained in the motor accident is assessed as 10% as per the Mc Brid's scale. 17. The appellant has not chosen to prove Ext.A7 medical certificate, by examining the doctor concerned. Considering the nature of injuries sustained by the appellant and the disabilities noted in Ext.A7, medical certificate, the permanent disability of the appellant on account of the injuries sustained in the accident can be taken as 4%. Going by the averments in the claim petition, the appellant was working as Head Constable in Police Service. Therefore, the permanent disability that had arisen **MACA.No.2965 OF 2008** **11** out of the injuries sustained in the accident will not adversely affect his earning capacity till his retirement from service at the age of 56 years. Taking the notional monthly income of the appellant after retirement from service as Rs.3,000/- and applying the multiplier of 9 applicable to the age of group of 56 to 60 years, he is granted a sum of **Rs.12,960/-** (3000 x 12 x 9 x 4/100) as compensation towards permanent disability. 18. In the award, the Tribunal awarded a consolidated amount of Rs.5,000/- towards loss of salary for one month. In the absence of any reliable materials placed on record to prove loss of salary, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, warranting an interference in this appeal. 19. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, compensation under this head is enhanced to Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 - 1,000). **MACA.No.2965 OF 2008** **12** 20. Towards damage to clothing, the Tribunal awarded an amount of Rs.1,000/-. Towards, bystander expenses, the Tribunal awarded a sum of Rs.1,000/- and a further sum of Rs.500/- was awarded towards extra nourishment. The accident is of the year 2006. Therefore, the compensation awarded by the Tribunal towards damage to clothing represents just and reasonable compensation. The appellant had undergone inpatient treatment for 3 days. Considering the nature of injuries sustained and treatment the appellant had undergone, compensation awarded by the Tribunal under the heads extra nourishment and bystander expenses represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards treatment expenses, the Tribunal awarded a sum of Rs.4,000/-. Ext.A8 series of medical bills are for a sum of Rs.3,772/-. 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. Towards pain and sufferings, the Tribunal awarded **MACA.No.2965 OF 2008** **13** a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, the compensation awarded by the Tribunal under this head is re-fixed as Rs.12,500/-, resulting an additional compensation of **Rs.2,500/-** (12,500-10,000). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.4,000/-. The permanent disability of the appellant, on account of the injuries sustained in the accident, is taken as 4% in this appeal. In such circumstances, the compensation under this head is re-fixed as Rs.5,000/-, resulting an additional compensation of **Rs.1,000/-** (5,000-4,000). 24. In the result, the appellant will be entitled for an additional compensation of **Rs.16,960/-** (Rupees Sixteen Thousand Nine Hundred and Sixty only) [12,960 + 500 +2,500+ 1,000] 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 **MACA.No.2965 OF 2008** **14** 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. 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 This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/4/11