Unnikkannan v. B. Sureshkumar and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941** ## **MACA.No.1266 OF 2010** **AGAINST THE AWARD IN OP(MV).No.1039/2002 DATED 08-04-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/ PETITIONER:** **UNNIKKANNAN, S/O. MADHAVAN PILLAI, KILIYANTHARAPARAMBIL HOUSE, POONITHUR,, ERNAKULAM.** **BY ADVS. SRI.KISHOR B. SRI.AJAY JOHNS** ## **RESPONDENT/S:** |**1**|**B.SURESHKUMAR AND OTHERS**| |---|---| ||**M/S.K.P.GOVINDA MENON, BIG BAZAR,, KOCHI-2**| |**2**|**SREEDEVI WO.VISWANATHAN**| ||**RADHAGOVINDAM,TRIPUNITHURA.**| |**3**|**NATIONAL INSURANCE COMPANY**| ||**M T P C OFFICE, M.G.ROAD, KOCHI-16.**| **R3 BY SRI.LAL GEORGE, SC, NATIONAL INSURANCE COMPANY LIMITED** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 1266 of 2010 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1039 of 2002 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 06.01.2002, while he was peddling a bicycle. At the place of accident, he was knock down by a car bearing registration No.KL-7/Y-6462 owned by the 1[st] respondent, driven 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 car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex parte. The 2[nd] respondent driver did not file any written statement. 3. The 3[rd] respondent insurer filed written statement -3- MACA. No. 1266 of 2010 admitting insurance coverage of the car involved in the accident; however, denying negligence alleged against 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, Exts.A1 to A14 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 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.1,07,650/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with proportionate cost, and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation -4- MACA. No. 1266 of 2010 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 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 -5- MACA. No. 1266 of 2010 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 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; |**Head**|**Amount awarded**| |---|---| |Medical expenses (supported by bills)|75,150| |Transportation & damage to clothes|1,000| -6- MACA. No. 1266 of 2010 |Attendant expenses & extra nourishment|3,500| |---|---| |Shock, Pain & sufferings|20,000| |Loss of earning|6,000| |Loss of amenities and convenience|8,000| |Towards future treatment|4,000| |Total|1,07,650/-| ||=========| 12. The accident occurred on 06.01.2002. At the time of accident, the appellant was aged 22 years. The appellant claimed a monthly income of Rs.4,500/- as mason. The appellant has not chosen to mount the box to prove his monthly income. 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. 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 -7- MACA. No. 1266 of 2010 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, -8- MACA. No. 1266 of 2010 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 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. 16. The document marked as Ext.A8 is the accident register-cum-wound certificate. Ext.A9 is the discharge -9- MACA. No. 1266 of 2010 summary. As per medical records, in the accident, the appellant sustained injury on the scalp and fracture humerus left and fracture pelvis. He had undergone inpatient treatment for 17 days. Ext.A11 medical bill is for a sum of Rs.75,150/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.2,000/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.17,500/- (3,500 x 5), resulting an additional compensation of **Rs.11,500/-** (17,500 – 6,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 17 days. The accident is of the year 2002. Towards transportation and damage to clothing, the Tribunal awarded a consolidated sum of Rs.1,000/-. Considering the nature of -10- MACA. No. 1266 of 2010 injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head transportation is re-fixed as Rs.2,000/-. Considering the fact that the accident is of the year 2002, this Court deem it appropriate to re-fix the compensation under the head damage to clothing as Rs.750/-, resulting an additional compensation of **Rs.1,750/-** [(2,000 + 750) – 1,000] under these heads. 19. Towards bystander expenses and extra nourishment the Tribunal awarded a consolidated sum of Rs.3,500/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 17 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 refixed as Rs.2,550/- (150 x 17), and the head extra nourishment is re-fixed as Rs.1,700/- (100 x 17), resulting an additional compensation of **Rs.750/-** [(2,550 + 1,700) – 3,500]. -11- MACA. No. 1266 of 2010 20. Towards medical expenses, the Tribunal awarded a sum of Rs.75,150/-, covered by Ext.A11 medical bill. 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. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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 this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 22. Towards loss of amenities the Tribunal awarded a sum of Rs.8,000/-. Before the Tribunal, the appellant was referred to medical Board at District Hospital, Ernakulam. During the course of argument, the learned counsel for the appellant had made available for the perusal of this Court a copy of the medical certificate dated 11.08.2008, in which no -12- MACA. No. 1266 of 2010 permanent disability is assessed by the Medical Board. In the absence of any materials to prove permanent disability, 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. 23. Towards future treatment, the Tribunal awarded a sum of Rs.4,000/-. 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 this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 24. By order dated 11.11.2019, this Court condoned the delay of 177 days in filing this appeal, subject to the condition that the question as to whether the appellant will be entitled to interest for enhanced compensation, if any, granted in this appeal for the period from 23.07.2010 till the date of that order, for not paying process to serve notice on the respondents, will be decided at the time of final hearing. -13- MACA. No. 1266 of 2010 Considering the delay in paying process, it is ordered that the appellant will be entitled to interest for the additional compensation granted in this appeal, only at the rate of 7% per annum, instead of 8% per annum. 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.14,000/-** (Rupees fourteen thousand only) [11,500 + 1,750 + 750] in this appeal, which will carry interest at the rate of **7%** 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. The disbursement of additional 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 Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. -14- MACA. No. 1266 of 2010 The appellant shall provide 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. All pending interlocutory applications in this appeal are closed. **Sd/ANIL K.NARENDRAN JUDGE** das