Bibin vs Bibin

Kerala High Court

Bibin vs Bibin on 3 May, 2024

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
        FRIDAY, THE 3RD DAY OF MAY 2024 / 13TH VAISAKHA, 1946
                         MACA NO. 3576 OF 2016
  AGAINST THE AWARD DATED 24.07.2015 IN OP(MV) NO.10 OF 2013 OF
                  MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA
APPELLANT:

             BIBIN
             S/O.MANUEL, MADAPPALLIYIL HOUSE,
             POONJAR, THEKKAKARA VILLAGE,
             ADIVARAM P.O., KOTTAYAM DISTRICT.
             BY ADVS.
             SRI.GEORGEKUTTY MATHEW
             SRI.BINISH MATHEW


RESPONDENTS:

    1        BIBIN
             S/O.ABRAHAM, VETTUKALLEL HOUSE,
             PERINGULAM P.O., THEKKEKARA.
    2        ABIN
             S/O.ABRAHAM, VETTUKALLEL HOUSE,
             PERINGULAM P.O., THEKKEKARA.
    3        THE MANAGER
             NATIONAL INSURANCE CO. LTD., KANJIRAPPALLY.
             BY ADVS.
             SRI.E.M.JOSEPH


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.05.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.3576/2016              2




                            JUDGMENT

Dated this the 3rd day of May, 2024 Appellant is the petitioner in O.P.(M.V.) No.10 of 2013 on the files of the Motor Accidents Claims Tribunal, Pala (hereinafter referred to as the 'Tribunal'). This M.A.C.A. is filed by the appellant aggrieved by the quantum of compensation awarded by the Tribunal. Respondents in the appeal are the respondents before the Tribunal.

2. Brief facts leading to the O.P. (M.V.):

The case of the appellant is that on 06.05.2012, at 7.45 P.M., while he was driving a motorcycle from Poonjar to Adivaram when he reached at Peringulam, another motorcycle bearing registration No.KL-35/A-6147 driven by the 1st respondent came in a rash and negligent manner and hit against the motorcycle driven by the appellant. In the impact of the said collision, appellant fell off from his motorcycle and sustained injuries. He contends that the accident occurred due to the negligence on the part of the 1st respondent driver of the motorcycle bearing M.A.C.A.No.3576/2016 3 registration No.KL-35/A-6147 which was owned by the 2nd respondent and was insured with the 3rd respondent insurance company. He thus referred the above O.P.(M.V.) before the Tribunal seeking compensation.

3. Proceedings before the Tribunal:

In the O.P.(M.V.), Tribunal issued notice to the respondents and in response thereto, the 3rd respondent insurance company appeared and filed a written statement admitting the policy. The 1 st and 2nd respondents viz., the driver and owner respectively of the motorcycle bearing registration No.KL-35/A-6147 remained ex parte. The Tribunal framed four issues and the contesting parties went to trial. Exts.A1 to A9 were marked from the side of the appellant. No documents were marked from the side of the 3 rd respondent insurance company. Both sides did not examine any witnesses. After considering the evidence tendered and hearing the contesting parties, the Tribunal rendered an Award for an amount of Rs.10,42,550/- with 9% interest per annum for the prescribed period and for proportionate costs. Aggrieved by the quantum of compensation awarded, the appellant has preferred this M.A.C.A.

4. Heard Sri.Georgekutty Mathew, learned counsel M.A.C.A.No.3576/2016 4 appearing for the appellant and Sri.E.M.Joseph, learned counsel appearing for the third respondent.

5. Contention raised by both sides:

Principal contentions by the counsel for the appellant:

# Tribunal erred in arriving at the 'monthly income' of the appellant as Rs.9,000/- .

# Tribunal ought to have noted that as per Ext.A9 salary certificate the monthly salary of the appellant was Rs.10,529/-.

# Ext.A9 salary certificate was marked without any objection from the side of the 3rd respondent insurance company.

# 'Loss of earning' and 'loss of earning capacity' arrived at by the Tribunal are incorrect.

# Amount granted towards 'pain and suffering' by the Tribunal is insufficient in view of the nature of the injuries suffered as also the period of treatment undergone by the appellant.

# Compensation towards 'loss of amenities' granted by the Tribunal is meager.

# The Tribunal ought to have allowed amounts towards 'loss of expectation of married life' taking note of the age of the appellant during the relevant time, ie., 26 years. # Appellant is entitled to compensation towards 'future treatment' and the Tribunal erred in not allowing the same.

6. Per contra, the counsel for the 3rd respondent insurance company vehemently opposed the prayer for enhancement of the Award amount. He submitted that the Award of the Tribunal does not call for any interference or enhancement. He reasoned that Ext.A9 salary certificate relied on by the appellant is per se unreliable as the same has not been validly proved before the Tribunal by examining its author. As long as the contents of a document has not been proved by following a method acceptable in law, mere marking of the document does not merit its reliance, contends the counsel. The counsel for the insurance company thus sought the dismissal of the M.A.C.A. confirming the Award of the Tribunal.

7. Discussion and Reasoning:

'Loss of earning' and 'loss of earning capacity' : The appellant had claimed an amount of Rs.1,00,000/- towards loss of earnings. M.A.C.A.No.3576/2016 6 For substantiating his monthly income, appellant had produced Ext.A9 document which is a salary certificate issued to the appellant by Kottayam Cable Channel Distributors Pvt. Ltd. The said document states that appellant's monthly salary is Rs.10,529/-. The Tribunal was not inclined to accept the said document in toto and reckoned the monthly salary at Rs.9,000/-. The counsel for the appellant submits that though the Tribunal was indeed persuaded by Ext.A9, the reduction of monthly salary to an amount to Rs.9,000/- from Rs.10,529/- as stated in the said document was devoid of any verifiable basis and is hence unsustainable. He further submits that since the marking of the said document was not objected to by the counsel for the insurance company, Tribunal ought to have accepted the full salary amount of Rs.10,529/- mentioned in Ext.A9. Hence it is contended that if the document which has been produced and marked before the Tribunal is prima facie reliable, the mere fact that the author of the document has not been examined need not in any manner reduce the reliability of the document or incapacitate the Tribunal from relying on the same.

8. A perusal of the Award reveals that though the Tribunal was persuaded by Ext.A9 in arriving at the monthly salary, it had M.A.C.A.No.3576/2016 7 rightly noted that the accident had occurred in the year 2012 whereas Ext.A9 document is of the year 2014. That no witnesses were examined to depose in support of the said document had also weighed with the Tribunal. The Tribunal was hence justified in approaching the said document with some amount of doubt and circumspection.

9. The counsel for the appellant at this juncture, points towards the summary nature of the proceedings before the Tribunal under the Motor Vehicles Act, 1988. As regards the nature of the proceedings before the Tribunal, the Hon'ble Supreme Court in Jai Prakash v. National Insurance Co. Ltd. & ors. [2010 (2) SCC 607] has held that the procedure to be followed by the Motor Accident Claims Tribunal under the Act is summary in nature and it need not be conducted like civil suits. The proposition was further reiterated in ICICI Lombard General Insurance Company v. M.D.Davasia @ Jose [2019 (4) KHC 157], wherein it was held that Tribunal is not a civil court though it has the trappings of a civil court. More recently, in Sunita & ors v. Rajasthan State Road Transport Corporation [2020 (13) SCC 486], the Hon'ble Supreme Court held that proceedings before M.A.C.A.No.3576/2016 8 the Tribunal is not an adversarial adjudication. It is thus trite and settled law that proceeding before the Tribunal are summary and inquisitorial in nature where the judge is to arrive at the truth rather than the claimants proving their case and that the jurisdiction exercised by the Tribunals under the Motor Vehicles Act, 1988 does not envisage the technicalities of an adversarial adjudication. Hence, the Tribunal ought not have doubted the veracity of Ext.A9 document which was marked without objection nor should it have reduced the amount stated therein to Rs.9,000/- from Rs.10,529/-, submits the counsel.

10. However, I do not find much force in the above contentions since the reliability of the document produced before the Tribunal needs its own independent legal substantiation and cannot be equated with or compared to the summary nature of the proceedings before the Tribunal. However, I find force in the contention of the counsel that appellant was aged 26 years at the time of the accident and it has been brought out in evidence that he was employed as a channel reporter. Having relied on Ext.A9 document for assessing the monthly income, the Tribunal ought to have given appropriate weightage to the amount stated M.A.C.A.No.3576/2016 9 therein. I find that in the facts and circumstances of the case, it is fair and reasonable to fix the monthly salary of the appellant who was then aged 26 years and occupying the said post of channel reporter at Rs.10,000/- per month. The monthly income of the appellant is thus fixed at Rs.10,000/- . Calculated at the rate of Rs.10,000/- per month, the loss of earning of the appellant for a period of 5 months is Rs. 50,000/- . The amount of Rs.45,000/- granted towards loss of earnings by the Tribunal is thus hereby increased and re-fixed as Rs.50,000/-. As regards 'loss of earning capacity', Ext.A8 Disability Certificate issued by the Medical Board of the District Hospital, Kottayam, records a disability of 30%. Accepting the same, the Tribunal had computed the compensation payable towards 'loss of earning capacity' at Rs.5,50,800/-. In the light of the re fixation of monthly income at Rs.10,000/- as herein above, the 'loss of earning capacity' is re-computed as Rs.6,12,000/- (10,000x12x17x30/100=6,12,000). The amount of Rs.5,50,800/- granted by the Tribunal towards 'loss of earning capacity' is thus increased and re fixed as Rs.6,12,000/-.

11. 'Pain and suffering' and 'loss of amenities':

The Tribunal has granted an amount of Rs.45,000/- towards M.A.C.A.No.3576/2016 10 pain and suffering against the appellant's claim for Rs.2,00,000/-. The nature of injuries suffered by the appellant is discernible from the documents produced including Ext.A4 Wound Certificate cum Discharge Certificate. The Tribunal has noted that the appellant had suffered lacerated wound on the right forehead, black eye right side, pain and tenderness over the leg and multiple abrasions on the right hand. CT scan of the brain showed right basi frontal bleed, fracture of the right orbit and fracture of radial styloid. Injuries pointed out in Ext.A6 Discharge Certificate for medico legal cases have also been duly noted by the Tribunal and reproduced in its Award. Appellant was first admitted to the hospital on 07.05.2012 and was discharged on 10.05.2012. Later he was admitted to Little Flower Hospital, Angamaly, on 10.05.2012 and discharged therefrom on 15.05.2012. He was thus hospitalized for 13 days. In Benson George v. Reliance General Insurance Co. Ltd. & Anr. [2022 KHC 6232], the Hon'ble Supreme Court has held that there cannot be straight jacket formula regarding compensation to be awarded under the heads of pain and suffering and loss of amenities. It depends on the circumstances of each case and it varies from person to person who M.A.C.A.No.3576/2016 11 has suffered due to the accident. In the facts and circumstances of the case and appreciating the evidence rendered by the appellant, the amount of Rs.45,000/- awarded towards pain and suffering by the Tribunal is just and reasonable. There is no legally valid reason to interfere with the compensation for pain and suffering as awarded by the Tribunal as the Tribunal has applied its mind to the nature of the injuries and the time period spent by the appellant in the hospital. As regards 'loss of amenities', the Tribunal has awarded an amount of Rs.2,00,000/- as against the claim of Rs.4,00,000/-. Towards arriving at the said amount, the Tribunal has rightly taken note of the fact that the appellant had suffered traumatic optic neuropathy. The Hon'ble Supreme Court in Benson George's case (supra) has held that "loss of amenities and happiness suffered by the claimant and his family members also depend upon various factors, including the position of the claimant post accident and whether he is in a position to enjoy life and/or happiness which he was enjoying prior to the accident. To what extent the claimant has lost the amenities in life and the happiness will depend on the facts of each case." In the facts and circumstances of the case at hand, the grant of Rs.2,00,000/- as M.A.C.A.No.3576/2016 12 compensation towards 'loss of amenities', is just and reasonable. There is no legally valid reason to interfere with the compensation awarded by the Tribunal under the said head.

12. 'Future treatment' and 'loss of expectation of married life' :

The Tribunal has not allowed any amount towards 'loss of expectation of married life' though the appellant has claimed Rs.5,00,000/- under the said count. Similarly, though the appellant had claimed an amount of Rs.2,00,000/- towards 'future treatment', no compensation was granted by the Tribunal under the said head. The reasoning of the Tribunal for totally declining any amount under the said heads is elaborated in para 15 of the Award. The Tribunal has reasoned that no evidence whatsoever has been produced before the Tribunal to show that the appellant had undergone any treatment subsequent to his discharge from the hospital on 15.05.2012. The Tribunal thus concluded that there is no merit in the claim for Rs.2,00,000/- towards 'future treatment'. Similarly with respect to the compensation of Rs.5,00,000/- claimed towards 'loss of expectation of married life', he has not been examined before the Tribunal nor has any steps been taken to M.A.C.A.No.3576/2016 13 establish that his marriage prospects have been reduced. No evidence whatsoever had been tendered before the Tribunal to show that the appellant who is only aged 26 is a spinster and that the accident has reduced his marriage prospects. In the light of such glaring lack of evidence, the Tribunal had correctly and for valid reasons declined to grant any compensation on the said two grounds. No contra reasons whatsoever have been placed before this Court to interfere with the said finding of the Tribunal.

13. Conclusion:

In view of the above, the monthly income of the appellant is re-fixed at Rs.10,000/- instead of Rs.9,000/- fixed by the Tribunal in its Award. The 'loss of earnings' calculated based on the monthly income thus comes to Rs.50,000/-. The amount of Rs.5,50,800/- awarded by the Tribunal towards 'loss of earning capacity' is increased and re-fixed as Rs.6,12,000/-. No enhancement is granted under any other heads.

14. The Award of the Tribunal is modified to the above extent enhancing the compensation by a further amount of Rs.66,200/-. Appellant will be entitled to interest @ 9% per annum from the date of O.P.(M.V.) on the enhanced amount. However, M.A.C.A.No.3576/2016 14 the appellant will be disentitled for the interest for the period of 342 days which constitutes the delay in filing the M.A.C.A. which was condoned by this Court subject to the said condition vide Order dated 19.09.2023 in C.M.Application No.4104 of 2016 in the above M.A.C.A. M.A.C.A. stands disposed of as above.

Sd/-

SYAM KUMAR V.M. JUDGE csl