Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941 MACA.No.1473 OF 2010 AGAINST THE AWARD IN OPMV 1469/2006 DATED 30-01-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA APPELLANT/S: MANOJ, AGED 33 YEARS NEDUMBAL DESOM,THOTTIPPAL VILLAGE PO, MUKUNDAPURAM TALUK,THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT/S: 1 PETER.T.J S/O. JOHNY.T. 103, D.R.NAGAR,PONDICHERRY. 2 DINTO S/O. YOHANNAN THRISSOOKKARAN HOUSE NEAR P.V.S.SCHOOL,PARAPPOOKKARA PO,THRISSUR, DISTRICT. 3 UNITED INDIA INSURANCE CO.LTD. PARK HOUSE, ROUND NORTH,THRISSUR DISTRICT. R3 BY ADV. P K MANOJ KUMAR (B/O) R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
JUDGMENT
The appellant is the claimant in O.P(MV)No.1469 of 2006
on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 17.09.2006, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-7/M-9376, insured with the 4th respondent. At the place of accident, the said motorcycle was hit by a car bearing registration No.PY- 01/M-1662, owned by the 1st respondent, driven by the 2nd respondent and insured with the 3rd respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 2nd respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads.
2. Before the Tribunal, all the respondents remained absent and they were set ex parte. -3-
3. On the side of the appellant/claimant, Exts.A1 to A7 were marked. The appellant has 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 2nd 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.71,700/-, together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost and the said insurer was directed to satisfy the award.
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 3 rd respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1 st -4- respondent was dispensed with, by the order of this Court dated 12.11.2019.
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 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 -5-
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;
Loss of earnings 8,000 (2,000 x 4) Bystander's expenses 1,600 (16 x 100) Pain and Sufferings 15,000 Loss of amenities 7,000 Transportation expenses 1,000 Medical expenses 39,100 (Ext.A7 bills) --------------------- Total 71,700/- -6- ============
11. The accident occurred on 17.09.2006. At the time
of accident, the appellant was aged 33 years. The appellant claimed a monthly income of Rs.4,800/- as painting worker. 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.
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
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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.
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
-8- 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. 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, the monthly income, claimed as Rs.4,800/- in the claim petition, cannot be said to be on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads.
15. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge summary. As per
medical records, the appellant sustained first degree compound fracture of the right tibia and fracture of the head of right fibula. Initially he had undergone inpatient treatment for 10 days at Elite Hospital, Thrissur. Therefore, he was again admitted for 6 days for interlock nail removal. Ext.A7 series of medical bills are for a sum of Rs.39,100/-.
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16. Ext.A6 is the disability certificate, issued by an individual doctor, in which the permanent disability of the
appellant is assessed as 11%. The disability certificate was not proved by examining the doctor concerned. Therefore, the disability noted in Ext.A6 was discarded by the Tribunal for the purpose of awarding compensation under the head disability. As evident from Ext.A6, the assessment of permanent disability was made with implant in situ. Considering the nature of injuries sustained, the Tribunal cannot be found fault with in discarding Ext.A6 disability certificate.
17. Towards loss of earning, the Tribunal awarded a
sum of Rs.8,000/-, at the rate of Rs.2,000/- 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 4 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.4,800/-, the compensation under the head loss of earning is re-fixed as Rs.19,200/- (4,800 x 4), resulting an additional compensation of Rs.11,200/- (19,200 - 8,000).
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18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 16 days in two different spells. 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 medical records, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of Rs.1,000/- (2,000 - 1,000).
19. Towards bystander expenses the Tribunal awarded a sum of Rs. 1,600/- (16 x 100). The Tribunal awarded no amount towards extra nourishment. The accident is of the
year 2006 and the appellant had undergone inpatient treatment for 16 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 re-fixed as Rs.2,400/- (150 x 16), resulting an additional compensation of Rs.800/- (2,400 - 1,600). A sum of Rs.1,600/- (100 x 16) is granted towards extra nourishment.
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20. Towards medical expenses, the Tribunal awarded a
sum of Rs.39,100/-, covered by Ext.A7 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
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 disability compensation, no amount has
been awarded by the Tribunal. As already noticed, the assessment of disability in Ext.A6 disability certificate was made with implant in situ. The appellant has also not chosen to prove Ext.A6 by examining the doctor concerned. Therefore, the Tribunal rightly declined compensation under the head disability, in the absence of any reliable materials. -12-
23. Towards loss of amenities the Tribunal awarded a
sum of Rs.7,000/-. Considering the nature of injuries sustained and non-union of fracture of head of fibula noted in Ext.A6 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.10,000/-, (since no compensation is granted under the head disability) resulting an additional compensation of Rs.3,000/- (10,000 - 7,000).
24. As already noticed, the assessment of disability in
Ext.A6 disability certificate was made with implant in situ. Considering the said fact, this Court deem it appropriate to grant a sum of Rs.10,000/- under the head future treatment expenses, which will carry no interest.
25. In the result, the appellant will be entitled for
payment of an additional compensation of Rs.29,900/- (Rupees twenty nine thousand nine hundred only) [11,200 + 1,000 + 800 + 1,600 + 3,000 + 10,000] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation (excluding Rs.10,000/- granted under the head future treatment expenses). The 3rd respondent insurer shall satisfy the additional compensation granted in
-13- 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 the amount to the appellant/claimant shall be made 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. This appeal is disposed of as above. No order as to costs. Sd/- ANIL K.NARENDRAN JUDGE das