Vishnu Mohanan v. Sreeraj N.N. and National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941** ## **MACA.No.3664 OF 2019** **AGAINST THE AWARD IN OP(MV)NO.1489/2014 DATED 30-01-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER :** **VISHNU MOHANAN AGED 28 YEARS S/O.MOHANAN, VISHNU BHAVAN, T.V.PURAM P.O.,VAIKOM.** **BY ADV. SRI.JOY C. PAUL** ## **RESPONDENTS/RESPONDENTS:** **1 SREERAJ.N.N. AGED 37 YEARS** **S/O.NARAYANAN NAMBOOTHIRI, NEELINILAYAM HOUSE, KULAYETTIKARA P.O., TRIPOONITHURA, PIN-682 315.** **2 NATIONAL INSURCANCE COMPANY LTD., TRIPOONITHURA-682 301.** ## **BY SRI LAL GEORGE -STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3664 OF 2019** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1489 of 2014 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 in a motor accident, which occurred on 26.02.2014, while he was riding a motorcycle bearing registration No.KL-36/C-5467. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-39/C-3347, owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. Alleging that the accident occurred due to the rash and negligent riding of the motorcycle by the 1[st] respondent owner-cumrider, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,08,000/-, which was limited to Rs.1,50,000/-, for the purpose of payment of court fee. 2. Before the Tribunal, though the 1[st] respondent owner-cum-rider entered appearance, no written statement was filed. The 2[nd] respondent insurer entered appearance and filed written statement admitting the insurance **MACA.No.3664 OF 2019** **3** coverage of the offending motor cycle; however denying the negligence alleged against the 1[st] respondent owner-cumrider. The insurer disputed the age, occupation and income of the appellant/claimant shown in the claim petition and contended that the compensation claimed under various heads are excessive and exorbitant. 3. Before the Tribunal, Exts.A1 to A13 were marked on the side of the appellant/claimant. He was examined as PW1. The respondents have not chosen to adduce any oral or documentary 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 riding of the offending motorcycle by the 1[st] respondent owner-cum-rider. Since the insurance coverage of the vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.91,310/- and the insurer was directed to satisfy the award, with interest at the rate of 9% per annum from the date of petition, till the date of deposit, together with **MACA.No.3664 OF 2019** **4** proportionate cost. In view of the order in I.A.No.229 of 2016 interest is excluded for the period from 16.12.2015 to 24.09.2016. Similarly, in view of the order in I.A.No.4917 of 2017 interest is excluded for the period from 05.07.2017 till the date of final hearing, i.e., till 28.11.2018. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. Since the insurance coverage of the offending vehicle is not in dispute, by the order of this Court dated 23.09.2019, service of notice on the 1[st] respondent owner-cum-rider was dispensed with. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of 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 **MACA.No.3664 OF 2019** **5** 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. ## 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 **MACA.No.3664 OF 2019** **6** 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; |Heads|Amount<br>claimed|Amount<br>awarded (In<br>Rs.)|| |---|---|---|---| |Compensation for loss of earnings|60000|32000|| |Partial loss of earnings|5000|0|| |Transport to hospital and back to home|7000|3000|| |Extra nourishment|3000|2000|| |Damage to clothes and articles|3000|1000|| |Bystander Expenses|0|1800|| |Treatment Expenses|30000|1510|| |Compensation for pain and sufferings|50000|30000|| |Compensation for loss of earning power|50000|0|| |Compensation for disability|50000|0|| |Compensation for loss of amenities and<br>comforts|50000|20000|| |Total|3,08,000/-|91310|| |Claim limited to Rs.1,50,000/-|||| 11. The accident occurred on 26.02.2014. At the time of accident, the appellant was aged 23 years. He claimed a monthly income of Rs.9,000/- as a Painter. No materials were produced before the Tribunal to prove his monthly income. The appellant was examined as PW1. In the **MACA.No.3664 OF 2019** **7** absence of any reliable materials, the Tribunal fixed the monthly income of the appellant notionally as Rs.8,000/-, for the purpose of assessing compensation under various heads. 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 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 **MACA.No.3664 OF 2019** **8** 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 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, **MACA.No.3664 OF 2019** **9** considering the economic conditions prevailing at the time of accident, i.e., during the year 2014, 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 refix the monthly income of the appellant notionally as Rs.9,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A5 is the wound certificate issued from the Community Health Centre, Keechery and Ext.A9 is the treatment certificate, which would show that the appellant was admitted in the Taluk Head Quarters Hospital, Vaikom on 27.02.2014. On 07.03.2014 he was referred to the Medical College Hospital, Kottayam. Ext.A10 is the discharge card issued from the Medical College Hospital. As per Ext.A10, the appellant sustained compound fracture 2[nd] , 3[rd] and 4[th] metatarsal; lacerated wound 7x3x1 cm dorsum of right foot, tenderness right finger; fracture Right PI 3[rd] and 4[th] toes. 16. Towards compensation for loss of earning, the Tribunal awarded a sum of Rs.32,000/-, at the rate of **MACA.No.3664 OF 2019** **10** Rs.8,000/- per month 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 four months fixed by the Tribunal for granting compensation for loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.9,500/-, the compensation under the head loss of earnings is re-fixed as Rs.38,000/(9500x4), resulting an additional compensation of **Rs.6000/-** (38,000-32,000) under this head. 17. Towards transportation expenses, the Tribunal awarded a sum of Rs.3,000/-. Considering the fact that the appellant was referred from Taluk Head Quarters Hospital, Vaikom to Medical College Hospital, Kottayam, this Court deem it appropriate to re-fix the compensation under this head as Rs.4,000/-, resulting an additional compensation of **Rs.1,000/-** (4,000-3,000). 18. Towards damage to clothing, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2014, the compensation under this head is re- **MACA.No.3664 OF 2019** **11** fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500-1,000). 19. Towards bystander expenses, the Tribunal awarded a sum of Rs.1,800/-, at the rate of Rs.200/-, for a period of 9 days. Towards extra nourishment, the Tribunal awarded Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head bystander expenses is refixed as Rs.2,250/- (250x9), resulting an additional compensation of **Rs.450/-** (2,250-1,800). The compensation under the head extra nourishment is just and reasonable, which warrants no enhancement in this appeal. 20. Towards treatment expenses, the Tribunal awarded a sum of Rs.1,510/-, covered by Ext.A8 series of medical bills. In the absence of any further materials, the amount awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards the compensation for pain and sufferings, the Tribunal awarded a sum of Rs.30,000/-. Considering the **MACA.No.3664 OF 2019** **12** 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, Tribunal awarded a sum of Rs.20,000/-. Admittedly, no materials were placed on record to prove that the appellant is having any permanent disability, on account of the injuries sustained in the accident. At any rate, the compensation awarded by the Tribunal under the said head cannot be said to be on the lower side, warranting interference in this appeal. 23. The Tribunal, in the impugned award excluded interest for the award amount for the period from 16.12.2015 to 24.09.2016 and thereafter, for the period from 05.07.2017 till the date of final hearing, i.e, till 28.11.2018, in view of the orders in I.A.No.229 of 2016 and that in I.A.No.4917 of 2017. 24. In **Jacob Thomas v. Pandian [2005 (4) KLT** **MACA.No.3664 OF 2019** **13** **545]** a Full Bench of this court held that, when a claim filed under Section 166 of the Motor Vehicles Act, 1988 read with Rule 371 of the Kerala Motor Vehicles Rules 1989 and it is not dismissed under Rule 373, the Claims Tribunal after issuing notice to the respondents, even if the claimant is absent or the respondents absent, has got the power to proceed with the case either by collecting evidence as provided under sub-rule (5) of Rule 378 or dispose of the case under order IX of the Code of Civil Procedure, 1908 read with Rule 395 of the Kerala Motor Vehicles Rules. Hence, the view that after framing issues the Tribunal cannot dismiss the application for default under no circumstances is not correct. Where the Tribunal is genuinely satisfied that there are contumacious laches on the part of the claimants in prosecuting their claims and where the claimants are not interested in prosecuting their cases, the Tribunal can dismiss the application using Order IX, Rule 9 of the Code in appropriate cases. To the above extent, the decisions in **Lukose v. Govindan Nair [1990 (1) KLT 378]** and **Saramma Scaria and others v.** **MACA.No.3664 OF 2019** **14** **Mathai and another [2002 (2) KLT 404]** are overruled by the Full Bench. 25. When the Tribunal has the power to dismiss a claim petition invoking Order IX, Rule 9 of the Code of Civil Procedure, 1908 read with Rule 395 of the Kerala Motor Vehicles Rules, where the Tribunal is satisfied that there are contumacious laches on the part of the claimants in prosecuting their claims and where the claimants are not interested in prosecuting their claims, the Tribunal can certainly impose appropriate conditions for restoration of a claim petition dismissed for default. In appropriate cases, the Tribunal can impose conditions denying interest for the award amount for the period of delay in filing the application for restoration, etc. In the absence of any vitiating circumstances pointed out in the orders of the Tribunal in I.A.No.229 of 2016 and I.A.No.4917 of 2017, the appellant is not entitled for interest on the compensation awarded by the Tribunal and also on the additional compensation granted in this appeal, for the periods covered by those orders. **MACA.No.3664 OF 2019** **15** In the result, the appellant will be entitled for payment of an additional compensation of **Rs.7,950/-** (Rupees Seven thousand nine hundred and fifty only) [6,000+1,000+500+450] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period covered by the orders of the Tribunal in I.A.Nos.229 of 2016 and 4917 of 2017. The 2[nd] 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. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/4/10 **MACA.No.3664 OF 2019** **16**