Ushadevi and others v. A.G. Rajan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **MACA.No.1409 OF 2007** **AGAINST THE AWARD IN OP(MV)No.2837/2000 OF the MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS:** - **1 USHADEVI, W/O.LATE THULASIDHARAN, KARUMAGAYIL HOUSE, P.O.KOLAZHY, THRISSUR.** - **2 SRUTHY (MINOR), D/O.LATE THULASIDHARAN, KARUMAGAYIL HOUSE, P.O.KOLAZHY, THRISSUR.** - **3 SREEJITH (MINOR), S/O.LATE THULASIDHARAN, KARUMAGAYIL HOUSE, P.O.KOLAZHY, THRISSUR.** - **4 BHAVANI, W/O.ACHUTHAN, KARUMAGAYIL HOUSE, P.O.KOLAZHY, THRISSUR.** **BY ADVS. SRI.JIBU P THOMAS SRI.T.C.SURESH MENON** ## **RESPONDENTS:** - **1 A.G.RAJAN, RESIDING AT ADASSERY, VALAPPIL HOUSE, P.O.AMALA NAGAR,, THRISSUR DISTRICT.** - **2 V.J.THOMAS, S/O.JOHN, RESIDING AT VALIYAPIRIPPIL HOUSE, CHOTTUPARA, KILLANNUR, THRISSUR DISTRICT.** - **3 THE ORIENTAL INSURANCE COMPANY LTD. 2ND FLOOR, T.D.BUILDING, P.O.BOX NO.158, ROUND WEST, THRISSUR.** - **4 SUNIL, S/O.ZAKKARIA, RESIDING AT VALLITHOTTATHIL HOUSE, VATTAYI, KUNDUKKAD, THRISSUR. R1 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA.No.1409 of 2007 ## **JUDGMENT** The appellants are claimants 2 to 5 in O.P.(MV)No.2837 of 2000 on the file of the Motor Accident Claims Tribunal, Thrissur, which was a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Thulasidharan, the husband of the 1[st] appellant, father of 2[nd] and 3[rd] appellants and son of the 4[th] appellant, in a motor accident, which occurred on 29.08.2000, while he was waiting for bus at Naikanal Junction, Thrissur District. When the deceased attempted to board a bus bearing registration No.KRH-6515, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent, the 2[nd] respondent driver suddenly drove the vehicle forward, as a result of which Thulasidharan fell down and sustained injuries. He was taken to District Hospital, Thrissur and while undergoing inpatient treatment, referred to the Medical College Hospital, Thrissur on 31.08.2000, where he had undergone inpatient treatment for two days and discharged on 02.09.2000. Thereafter, on 26.02.2001, he breathed his last. Alleging that the accident occurred due to rash and negligent driving of the 3 MACA.No.1409 of 2007 offending vehicle by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.4,53,000/-, under various heads. 2. Before the Tribunal, respondents 1, 2 and 4 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of bus bearing registration No.KRH-6515. However, they denied the age, occupation and income of the deceased and that, the amount of compensation claimed under various heads are highly exorbitant. The insurer contended that the death of Thulasidharan is not due to the injuries sustained in the motor accident. As evident from wound certificate and relevant records, the deceased sustained only minor injuries. As per the First Information Statement given by the deceased, he sustained injuries below the knee, which were not at all fatal. He died after 5 months and 28 days from the date of accident. He had some other diseases, which may be the reason for his demise. Further, the amount claimed is excessive. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellants/claimants. The 1[st] appellant was 4 MACA.No.1409 of 2007 examined as PW1. Exts.B1 and B2 were marked on the side of the respondents. Exts.X1 and X2 are copies of FIR Index Registers. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to rash and negligent driving of the bus by the 2[nd] respondent driver. The Tribunal held further that, though the deceased sustained injuries in the road accident, his death was not on account of those injuries. The Tribunal awarded a total compensation of Rs.40,000/- under various heads and directed the 3[rd] respondent insurer to deposit the said amount together with interest at the rate 7% per annum from 16.10.2000 till the date of actual deposit with proportionate costs. The Tribunal apportioned the compensation between the Appellants/claimants 2 to 4 equally. 5. Challenging the finding of the Tribunal as to the cause of death of the deceased, and dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants claimants 2 to 4 have filed this appeal before this Court, under Section 173 of the Motor Vehicles Act. 5 MACA.No.1409 of 2007 6. Heard the learned counsel for the appellants 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 finding of the Tribunal as to the cause of death of the deceased warrants interference and also whether the appellants are entitled for enhancement of the compensation awarded by the Tribunal in various heads. 8. The accident occurred on 29.08.2000, at Naikanal Junction in Thrissur District, while the deceased was attempting to board the bus, the 2[nd] respondent driver suddenly drove the vehicle forward. The deceased fell down on the road and sustained injuries. The bones of his right leg were fractured. Immediately, after the accident, he was taken to Cooperative Hospital, Thrissur from where he was referred to the Medical College Hospital, Thrissur, where he had undergone inpatient treatment for two days. Thereafter, on 26.02.2001, he breathed his last. 9. Before the Tribunal, the widow of the deceased was examined as PW1. She contended that the death of her husband was due to the injuries sustained in the accident. The 6 MACA.No.1409 of 2007 3[rd] respondent insurer raised serious disputes as to the cause of death, pointing out that the deceased has not sustained any fatal injuries. There was nothing to prove that he had undergone any treatment after his discharge from the Medical College Hospital 02.09.2000, either in any hospital or at his house. The Tribunal noticed that, as per column No.11 of the original petition, he had sustained fracture to right tibia, contusion right ankle joint and abrasion over anterior aspect of leg. Ext.A2 is the wound certificate. The document marked as Ext.A3 is the postmortem certificate, wherein it was stated that the body of deceased Thulasidharan was sent by Additional Sub Inspector of Police, Traffic Police Station, Thrissur with letter in Cr.No.19/2001 for examination on postmortem, which was conducted on 26.02.2001. There were two ante-mortum injuries on the body of the deceased. There was a scar on the right side of the head and callus formation seen below the knee. As per the opinion of the Police Surgeon, the cause of death of the deceased was intracerebral hemorrhage. In the impugned award, the Tribunal concluded that there is no reason for causing intracerebral hemorrhage due to fracture of the left lower limb. The deceased had not 7 MACA.No.1409 of 2007 sustained any sort of injuries on his head. The finding of the Tribunal as to cause of death of the deceased is neither perverse or patently illegal, warranting interference in this appeal. Therefore, the finding of the Tribunal as to the cause of death of the deceased warrants no interference in this appeal. 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 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 8 MACA.No.1409 of 2007 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. 12. The accident occurred on 29.08.2000. At the time of accident, the deceased was aged 40 years. In the claim petition it was claimed that the deceased was a cooli (manual labourer) earning a monthly income of Rs.4,000/-. No reliable materials were produced before the Tribunal to prove the monthly income of the deceased. The widow of the deceased was examined as PW1. In the absence of any reliable materials, the Tribunal fixed the monthly income of the deceased 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)** 9 MACA.No.1409 of 2007 **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. 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 10 MACA.No.1409 of 2007 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 2000, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of the deceased can be notionally re-fixed as Rs.2,500/-. Since the 1[st] appellant, the widow of the deceased, was examined as PW1, this Court deem it appropriate to re-fix the monthly income of the deceased notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. 11 MACA.No.1409 of 2007 16. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.2,000/- per month for a period of 5 months. Considering the nature of injuries sustained and the treatment the deceased had undergone, as borne out from medical records, the period of 5 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the deceased is refixed notionally as Rs.2,500/-, 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.5,000/-** (15,000 – 10,000). 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment at Cooperative Hospital, Thrissur from where he was referred to the Medical College Hospital, Thrissur. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the deceased had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500) under this head. 12 MACA.No.1409 of 2007 18. The accident is of the year 2000 and the deceased had undergone inpatient treatment for few days. Towards bystander expenses the Tribunal awarded a sum of Rs.500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. Considering the nature of injuries sustained and the treatment the deceased had undergone, as borne out from medical records, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2000, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.2,500/-, covered by Ext.A11 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. 21. As compensation towards pain and suffering, the 13 MACA.No.1409 of 2007 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 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 and enjoyments of life, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained by the appellant, i.e., fracture of both bones of left leg and injury to left ankle, the compensation under this head is re-fixed as Rs.12,500/-, resulting an additional compensation of **Rs.2,500/-** (12,50010,000). 23. In the result, the appellants 2 to 4 will be entitled for payment of an additional compensation of **Rs.8,750/-** (Rupees Eight Thousand Seven Hundred and Fifty only) [5,000 + 1,000 + 250 + 2,500] 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 MACA.No.1409 of 2007 14 of a certified copy of this judgment, after deducting the liability, if any, of the appellants/claimants towards Balance Court Fee and Legal Benefit Fund. The additional compensation granted in this appeal shall be apportioned between appellants 2 to 4 equally. The disbursement of the amount 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** **yd**