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
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
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.
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
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
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
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
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
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
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
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,
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
