Amina Umma d/o Kunjumon v. Shifad P.U. and Shiyas P.U. and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943** **MACA NO. 608 OF 2013** **AGAINST THE JUDGMENT DATED 18.8.2012 IN OPMV 1792/2005 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** AMINA UMMA D/O. KUNJUMON, KARUPPAMVEETIL KADAVIL HOUSE, P.O., KADAPPURAM, CHAVAKKAD, THRISSUR. BY ADV SRI.V.BINOY RAM ## **RESPONDENTS/RESPONDENTS:** 1 SHIFAD P.U. S/O. UMMAR, PAZHOOPARAMBIL HOUSE, AZHIKODE.P.O., ERIYAD, KODUNGALLOOR THRISSUR DISTRICT-680666. 2 SHIYAS.P.U. S/O. UMMAR, PAZHOOPARAMBIL HOSUE, AZHIKODE.P.O., ERIYAD, KODUNGALLOOR THRISSUR DISTRICT-680666 3 THE MANAGER UNITED INDIA INSURANCE CO. LTD. SREEKUMAR BUILDINGS, P.B. NO. 1, SOUTH JUNCTION, CHALAKUDY, PIN-680307, THRISSUR DISTRICT. BY ADVS. SRI.A.K.RADHAKRISHNAN SRI.A.A.MOHAMMED NAZIR SRI.V.K.UNNIKRISHNAN SRI.A.A. MOHAMMED NAZIR-R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 608 OF 2013 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (MV) No.1792/2005 on the file of Motor Accidents Claims Tribunal, Thrissur (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, occurred on 19.6.2005, while the appellant/claimant was travelling in an autorickshaw bearing Reg.No.KL-8/V-6647 driven by the 2[nd] respondent. It is alleged that when the vehicle reached at Kaipamangalam, 2[nd] respondent, the driver of the autorickshaw tried to overtake a Maruti car and dashed against the Maruti car bearing Reg.No.KL-8 AC 3928 and thereafter against another tempo bearing Reg.No.KL-5A-655, out of it, the appellant/claimant sustained grievous injuries. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent. 1[st] respondent is the owner of the vehicle and 3[rd] respondent is the insurer of the offending vehicle. Total compensation of Rs.4,66,000/- has been claimed which is limited to Rs.3,50,000/-. MACA NO. 608 OF 2013 3 2. Before the Tribunal, 1[st] and 2[nd] respondent remained exparte. The 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence on the part of 2[nd] respondent is denied. 3. This case was tried along with O.P.(MV) No.1793/2005 and a common award was passed. Exhibits A1 to A10 were marked from the side of the appellant/claimant. PW1 is the doctor, who issued the disability certificate and examined from the side of the appellant/claimant. Tribunal on evaluating the evidence and facts and circumstances, found that the accident happened due to the negligence of the 2[nd] respondent and 3[rd] respondent insurer is held liable to make good the loss sustained by the appellant/claimant. The Tribunal awarded a total compensation of Rs.2,43,200/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 5. Respondents 1 to 3 entered appearance. 3[rd] respondent appeared through Standing Counsel Adv.A.A.Mohammed Nazir. Heard MACA NO. 608 OF 2013 4 the learned counsel for the appellant/claimant as well as the learned Standing Counsel for the insurer. Lower court records were called for and perused. Both sides were heard. 6. According to the learned counsel, the appellant/claimant (herein after be referred as claimant) was 48 years old at the time of accident and she was a house wife and was having a monthly income of Rs.5,000/-. But, the Tribunal notionally fixed her income as Rs.2,000/- per month, which is very low. 7. The learned counsel also would contend that the claimant sustained very serious injuries. Exhibit A8 disability certificate certified 37% whole body disability, but the Tribunal arbitrarily fixed 30% permanent whole body disability, which caused great prejudice to the claimant. Hence, the learned counsel prays for enhancement on all the heads. 8. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has been awarded by the Tribunal and no interference is called for at the instance of this Court. MACA NO. 608 OF 2013 5 9. The first aspect is with respect to the monthly income. The claimant was aged 48 years and she is a house wife. 10. In **Sobhag Mal Jain v State of Rajasthan and Ors. AIR 2006 Raj 66: 2006 KHC 4068** in an incident occurred in the 1984 quoting the principles in **Lata Wadhwa and Ors. v State of Bihar and Ors. AIR 2001 SC 3218** , monthly income of house wife has been taken as Rs.3,000/-. 11. In **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , wherein the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that 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 MACA NO. 608 OF 2013 6 resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 12. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-082008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in Ramchandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 13. In the present case since the claimant is a house wife, and the accident was in the year 2005, in view of the settled position of law, monthly income of Rs.5,000/- pleaded can be accepted. MACA NO. 608 OF 2013 7 14. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** the general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988, makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 15. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary MACA NO. 608 OF 2013 8 damages (Special damages) and non pecuniary damages (general damages). 16. In paragraph No.5 the heads coming under pecuniary damages and non pecuniary damages have been discussed. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, 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. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (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). The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves MACA NO. 608 OF 2013 9 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. 17. The claimant in this case sustained following injuries:- 1) Crush injury of right foot with no vascularity, 2) Comminuted fracture of tibial condyle (R) Comminuted Bimalleolus fracture (R) ankle. She had undergone inpatient treatment for 16 days. Exhibit A7 discharge summary would show that following procedures of treatment: Crushed foot amputation and raw area covered with skin graft, 19.6.05: Under SA, Wound debridement, Tibial condyle fixed with multiple cancellous screws. ® medial malleolus with malleolar screw, ® fibula fixed with K-Wire. POP slab applier. 18. PW1 is the doctor, Associate Professor in Orthopedics, Department of Orthopedics, Government Medical College, Thrissur. Exhibit A8 is the disability certificate. Disability certificate would show that: _1. Loss of foot (R) (SYMER Amputation) i.e. patient is weight bearing only on calcaneeum._ MACA NO. 608 OF 2013 10 _2. Malunited fracture of tibial condyle (R)_ _3. There is stiffness of (R) knee._ _4. United bimallelous fracture of (R) ankle._ _5. There is stiffness of (R) ankle._ 19. So, taking all those factors into account, the Doctor certifies 37% permanent disability for whole body. In view of the nature of injuries sustained by the claimant as well as the treatment and procedures undergone by the claimant 37% permanent whole body disability assessed by the Doctor can very well be accepted. 20. So, taking into account the fact that, claimant is a house wife and there is loss of foot (Synes amputation), loss of earning for 6 months awarded by the Tribunal can be approved. Re-fixing the amount, the compensation towards loss of earning would be Rs.5,000 x 6 = Rs.30,000/-. Deducting the amount already awarded the balance would be Rs.12,000/- (Rs.30,000-18,000). Towards extra nourishment no amount seen awarded. In view of the injuries and nature of treatment undergone by the claimant Rs.3,000/- is awarded towards extra nourishment. Towards pain and suffering only MACA NO. 608 OF 2013 11 Rs.15,000/- is awarded by the Tribunal. Towards pain and suffering an amount of Rs.20,000/- can be awarded. Deducting the amount already awarded the balance would be Rs.5,000/- (Rs.20,00015,000). 21. Next is with regard to compensation towards permanent disability. The proper multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '13', since, the claimant was 48 years at the time of accident. Hence, towards permanent disability the claimant is entitled to get Rs.5,000x12x13x37/100=Rs.2,88,600/-. Deducting the amount already awarded the balance would be Rs.1,48,200/- (Rs.2,88,6001,40,400). So the claimant is entitled for the enhanced compensation of Rs.1,68,200/- (Rs.1,48,200+5,000+3,000+12,000). 22. In the result, the claimant is allowed to realise enhanced compensation of **Rs.1,68,200/- (Rupees one lakh sixty eight** MACA NO. 608 OF 2013 12 **thousand two hundred only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition till realisation, excluding 46 days, the delay caused in filing this appeal. The 3[rd] respondent is directed to pay the additional 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. The claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Sd/- **M.R.ANITHA JUDGE** SMF