Adil v. Velayudhan s/o Andu and Laiju K.P. and The Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944** **MACA NO.1811 OF 2013** **AGAINST THE AWARD DATED 11.01.2013 IN OPMV 426/2011 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE.** ## **APPELLANT/PETITIONER:** **ADIL, S/O.ABDUL JABBAR, AGED 27 YEARS RESIDING AT MULLANKANDY HOUSE, P.O.THALAKKULATHOOR, KOZHIKODE. BY ADV SRI.AVM.SALAHUDIN** ## **RESPONDENTS/RESPONDENTS:** **1 VELAYUDHAN S/O.ANDU, RESIDING AT 772, LAIJU NIVAS, CHEENAMVALLIPARAMBU, P.O.KOYILANDY, KOZHIKODE-673 305. 2 LAIJU.K.P., AGED 34 YEARS, S/O.VELAYUDHAN.K.P., RESIDING AT CHEENAMVALLIPARAMBU, MANHILA HOUSE, P.O.KOYILANDY, KOZHIKODE-673 305. 3 THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, SREENIDHI BUILDING, BADAGARA-673 101. BY ADVS. SMT.A.SREEKALA SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1811 of 2013 **2** ## **JUDGMENT** Appellant is the claimant in O.P.M.V No.426/2011 on the file of Motor Accidents Claims Tribunal, Kozhikode (In short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant in a motor accident occurred on 23.11.2010 by hit with a car at Purakkattiri while he was travelling on a Motor Cycle. Total compensation of Rs.6,82,000/- has been claimed which was limited to Rs.3,00,000/-. It is alleged that the accident happened due to the rash and negligent driving of the car by the 2[nd] respondent. The 1[st] respondent is the registered owner of the offending vehicle. and 3[rd] respondent is the insurer. 2. Before the Tribunal, respondents 1 and 2 remained ex parte and the 3[rd] respondent insurer filed written statement denying the negligence attributed against the 2[nd] respondent. Policy coverage with respect to the offending vehicle is admitted. 3. Exts. A1 to A7 marked from the side of the appellant. There was no oral evidence on either side. On evaluation of the pleading as well as materials, the Tribunal found that the accident M.A.C.A No. 1811 of 2013 **3** happened due to the rashness and negligence on the part of the 2[nd] respondent, hence the 3[rd] respondent is held liable to indemnify the 1[st] respondent insured. The Tribunal awarded a total compensation of Rs.1,51,070/- under various heads together with interest at the rate of 7% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Notice to the 2[nd ] respondent has been dispensed with at the risk of the appellant. Service is completed on the 1[st] respondent. Adv.A.Sreekala, the Standing Counsel appeared on behalf of the 3[rd] respondent. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the appellant, the appellant was an engineer and he claimed a monthly income of Rs.35,000/-. But the Tribunal notionally fixed his income as Rs.5,000/- per month, which according to the learned counsel is very low. 7. It is further contended that Orthopaedics surgeon M.A.C.A No. 1811 of 2013 **4** attached to Medical College Hospital, Kozhikkode certified permanent disability at 27%. Tribunal arbitrarily fixed the disability at 7% which is illegal and unjust. It is also contended that amounts awarded towards pain and suffering and loss of amenities are very low. No amount was awarded towards bystander expenses. Hence enhancement of compensation is sought for all heads. 8. Learned Standing Counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 9. Though appellant is alleged to be an Engineer, no document has been produced either to prove his income, occupation or qualification. Hence rightly Tribunal taken the income notionally. But the question is whether the amount of Rs.5,000/- taken by the Tribunal is reasonable or not. 10. 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/-. M.A.C.A No. 1811 of 2013 **5** 11. 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/-. 12. The accident in this case was in the year 2010. Appellant was 25 years of age. Hence as per the dictum laid down in the above decisions, I am of the view that income of the claimant can be taken as Rs.7,500/- per month. 13. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the apex court has elaborately discussed the general principle relating to compensation in injury cases. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed in detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, M.A.C.A No. 1811 of 2013 **6** transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. 14. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:- Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 15. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 16. The injuries sustained by the appellant are open fracture right proximal radius shaft, fracture right olecranon process of ulna and open elbow joint right. He has been treated as inpatient in Baby M.A.C.A No. 1811 of 2013 **7** Memorial Hospital, Kozhikode from 23-11-2010 to 30-11-2010. Rs.52,570/- has been awarded by the Tribunal towards treatment expenses. Disability certificate issued by the Doctor certified disability at 27% without specifying as whole body. 17. Tribunal taken disability at 7% for the reason that Doctor, who issued disability certificate, was not the doctor who had treated the claimant and the Doctor was also not examined to prove the certificate. 18. It is true that the Doctor who issued Ext.A6 disability certificate was not the Doctor who treated the appellant. It was issued by the Associate Professor attached to Government Medical College, Kozhikode. On verifying the treatment records and discharge summary, it has been certified that patient has difficulties in lifting overhead and placing at same level. He has tender bad scar on elbow. Taking all those factors into account, Doctor fixed percentage of disability as 27%. As rightly found by the Tribunal, Though disability certificate certified disability at 27%, it is not specifically stated that it is whole body. Records also would go to show that he had undergone inpatient treatment for 8 days only. However, if at all, Tribunal is not satisfied with the medical records produced from the M.A.C.A No. 1811 of 2013 **8** side of claimant, Tribunal ought to have referred the claimant to a Medical Board. Without doing that reducing the disability at 7% is not seems to be just and reasonable. In the circumstances, taking into account the nature of injuries sustained by the claimant and the treatment expenses to the tune of Rs.52,570/- met by the appellant as well as in view of Ext.A6 disability certificate, I am of the view that functional disability can be taken at 12 %. 19. Tribunal awarded 'loss of earnings' for a period of four months, that can be approved. Refixing the amount towards loss of earning, it would come to 7,500x4=30,000/-. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.10,000/-** (30,000-20,000). 20. Claimant was 25 years old at the time of accident. Suitable multiplier to be adopted as per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '18'. So, towards permanent disability, the claimant is entitled to get 7500x12x18x12/100=Rs.1,94,400/-. Deducting the amount already awarded, the balance would be **Rs.1,54,400/-** (1,94,400-40,000) M.A.C.A No. 1811 of 2013 **9** 21. Rs.25,000/- has been awarded towards pain and suffering is seems to be reasonable. No enhancement is required on that head. Towards loss of amenities, Rs.10,000/- was awarded by the Tribunal. As per Ext.A6 disability certificate, he had difficulty in lifting overhead and placing at same level. So **Rs.10,000/-** can be further awarded towards loss of amenities. As rightly contended by the learned counsel, no amount is seen awarded towards bystander expenses. It has come out that he had undergone inpatient treatment for 8 days and the accident was occurred in the year 2010. Hence towards bystander expenses, claimant is entitled to get Rs.250/- per day. On that head, claimant would be entitled to get **Rs.2,000/-** (250x8). Hence, claimant is entitled to get total enhanced compensation of **Rs.1,76,000/-** (1,54,000 **+** 2,000+10,000+10,000). 22. In the result, appellant is allowed to realize an enhanced compensation of **Rs.1,76,000/-** (One lakh seventy six thousand only) in this appeal, which will carry interest at the rate of 6% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, deducting the liability of the appellant M.A.C.A No. 1811 of 2013 **10** ## towards balance court fee. The disbursement of the amount to the appellants shall be 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.D162475/2016 dated 07.11.2019. Appellant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the2 Bank Account Number and IFSC Code of the branch) before the Tribunal with copy to the Standing Counsel for insurer within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. SD/- **M.R.ANITHA** **JUDGE** rps/