V.N. Rajesh v. Kishore Kumar and United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** ## **MACA.No.4464 OF 2019(C)** **AGAINST THE AWARD IN OPMV 3358/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/CLAIM PETITIONER:** **V.N.RAJESH, AGED 34 YEARS, S/O NATARAJAN, RESIDING AT JASNA MANZIL, VAZHUVATTUTHAZHAM, THOTTUMMARAM P.O., POKKUNNU, KINASSERY, KOZHIKODE, PIN- 673 013** **BY ADV. SRI.P.M.SEBASTIAN** ## **RESPONDENTS/RESPONDENTS:** **1 KISHORE KUMAR, AGED 35 YEARS, S/O RAMAKRISHNAN, RESIDING AT VYSAKH(H), P.O. OLAVANNA, IRINGALLOOR DESOM, KOZHIKODE, PIN - 673 025 2 UNITED INDIA INSURANCE COMPANY LTD. REPRESENTED BY THE BRANCH MANAGER, BRANCH OFFICE, CHEROOTTY ROAD, KOZHIKODE, PIN - 673 001 BY ADV. SMT.K.SHERIN MOHAN BY ADV. SRI.AGINOV MATHAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.4464 OF 2019(C) **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.3358 of 2002 on the file of the Motor Accidents Claims Tribunal, Kozhikode, 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 28.12.2001, at an age of 17 years, while he was walking along the side of a public road. At the place of accident, he was knock down by a motorcycle bearing registration No.KL11/K-7415 owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumrider filed written statement admitting the ownership of the motorcycle involved in the accident; however disputing averments regarding the nature and cause of the accident. The 1[st] respondent contended that accident occurred due to the negligence on the part of the appellant and that, the MACA.No.4464 OF 2019(C) **3** compensation claimed is exorbitant. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying negligence alleged against the 1[st] respondent rider. The insurer contended that the appellant sustained injuries when he fell down from the bicycle and not in an accident involving the motorcycle in question. The Police referred the case as a fake case by submitting a refer report to that effect before the jurisdictional Magistrate. The insurer contended that the compensation claimed under various heads are on the higher side. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. 4. The Tribunal by the award dated 18.01.2008, dismissed the claim petition stating that the appellant failed to establish the accident involving the motorcycle owned by the 1[st] respondent. The said award was under challenge before this Court in M.A.C.A. No.129 of 2009. By the judgment dated 19.11.2008, this Court set aside the said award and directed the Tribunal to consider the matter afresh, after giving an opportunity to both sides to adduce further evidence, if any. Accordingly, the matter was considered afresh by the Tribunal. MACA.No.4464 OF 2019(C) **4** 5. Before the Tribunal, Exts.A1 to A6 were marked on the side of the claimant and PWs.1 and 2 were examined. The respondents have not chosen to adduce any oral or documentary evidence 6. 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 motorcycle by the 1[st] respondent. Such a conclusion was arrived at, relying on the oral testimony of PWs.1 and 2. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.32,500/-, together with interest at the rate of 7% per annum from the date of petiton till 31.12.2016 and thereafter at the rate of 8% per annum, till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 8. Heard the learned counsel for the MACA.No.4464 OF 2019(C) **5** appellant/claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. 9. 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. 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, MACA.No.4464 OF 2019(C) **6** 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. 12. 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 Rupees)|Amount<br>awarded<br>(in Rupees)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Pain and<br>sufferings|35,000|10,000|| |2|Loss of<br>amenities and<br>enjoyment in<br>life|20,000|5,000|| |3|Medical<br>expenses|36,000|3,600|Ext.A6<br>series| |4|Bystander’s<br>expenses|36,000|2,400|200 X 12<br>days| |5|Loss of earning|60,000|9,000|3,000 X 3<br>months| |6|Transport to<br>hospital|1,000|1,000|| MACA.No.4464 OF 2019(C) **7** |7|Damage to<br>clothings|1,000|500|| |---|---|---|---|---| |8|Extra<br>nourishment|2,000|1,000|| ||**Total**||**32,500**|| |||||| of accident, the appellant was aged 17 years. In the claim petition, it was claimed the appellant was having a monthly income of Rs.6,000/- as goldsmith. 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.3,000/-, for the purpose of assessing compensation under various heads. 14. 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 MACA.No.4464 OF 2019(C) **8** 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. 15. 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 MACA.No.4464 OF 2019(C) **9** 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 Rs.6,500/per month. 16. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2001, and the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.3,000/-, fixed by the Tribunal is not on the lower side, which requires no enhancement in this appeal. 17. Ext.A2 is the wound certificate and Ext.A4 is the reference card. As per medical records, in the accident, the appellant sustained fracture both bone left leg. The appellant had undergone inpatient treatment at Medical College Hospital, Kozhikode for a period of 12 days. Ext.A6 medical bills are for a sum of Rs.3,600/-. 18. Before the Tribunal, the appellant filed I.A.No.302 of 2005 to refer him to the Medical Board for assessing the permanent disability. However, that interlocutory application was dismissed as not pressed, subsequent to the remand of MACA.No.4464 OF 2019(C) **10** the case vide the judgment of this Court in M.A.C.A No.129 of 2009. Therefore, no materials were placed before the Tribunal to prove that the injuries sustained in the motor accident, which occurred on 28.12.2001, had resulted in any permanent disability. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.9,000/-, at the rate of Rs.3,000/- 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 4 months. Since the monthly income of the appellant is taken as Rs.3,000/-, the compensation under the head loss of earning is re-fixed as Rs.12,000/- (3,000 x 4), resulting an additional compensation of **Rs.3,000/-** (12,000 – 9,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 12 days. The accident is of the year 2001. 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, as borne out from MACA.No.4464 OF 2019(C) **11** medical records, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs. 1,000/-** (2,000 – 1,000). 21. Towards bystander expenses the Tribunal awarded a sum of Rs.2,400/- (200 x 12). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2001 and the appellant had undergone inpatient treatment for 12 days. 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 bystander expenses represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head extra nourishment is refixed as Rs.1,200/- (100 x 12), resulting an additional compensation of **Rs.200/-** (1,200 - 1,000). 22. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2001, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 – 500). MACA.No.4464 OF 2019(C) **12** 23. Towards medical expenses, the Tribunal awarded a sum of Rs.3,600/-, covered by Ext.A6 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. 24. As compensation towards pain and suffering, the 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 re-fixed as Rs.15,000/- resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 25. The Tribunal awarded Rs.5,000/- towards loss of amenities. No materials were placed before the Tribunal to prove any permanent disability of the appellant, on account of the injuries sustained in the accident. In the absence of any such materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement. 26. In the result, the appellant/claimant will be entitled MACA.No.4464 OF 2019(C) **13** for payment of an additional compensation of **Rs.9,450/-** (Rupees Nine Thousand Four Hundred and Fifty only) [3,000 + 1,000 + 200 + 250 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, 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. 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. 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. MACA.No.4464 OF 2019(C) **14** This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K. NARENDRAN, JUDGE** MIN MACA.No.4464 OF 2019(C) **15**