ANI @ ANIL KUMAR v. S. SURESH VAYALIL; Sumod; Oriental Insurance Company Ltd. - MACA No. 191 of 2012

## **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. 191 OF 2012** **AGAINST THE AWARD DATED 27.8.2011 IN OP(MV) 647/2008 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONER:** ANI @ ANIL KUMAR AGED 30 YEARS S/O. BHASKARAN PILLAI, PAMPURATHUVILA VEEDU, PERUMPUZHA.P.O., KOLLAM. BY ADV SRI.C.RAJENDRAN ## **RESPONDENTS/RESPONDENTS:** 1 S.SURESH VAYALIL VEEDU, THANNI, MAYYANAD, KOLLAM-691303. 2 SUMOD S/O. UNNIKRISHNA PILLAI, VADAKKE VAYAKKAL VEEDU, EDAPPADAM VAYAL, KAVANAD.P.O., KOLLAM-691003. 3 THE DIVISIONAL MANAGER ORIENTAL INSURANCE COMPANY LTD. CHINNAKKADA, KOLLAM-691001. BY ADV SMT.A.SREEKALA-R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.191 of 2012 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (M.V) No.647/2008 on the file of Motor Accidents Claims Tribunal, Kollam. 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 injury sustained by the appellant/claimant (herein after be referred as claimant) in an accident occurred on 10.8.2006 at about 9.30 a.m, when the claimant was riding a motorcycle bearing Reg.No.KL2Z-283 through Kollam-Schenkottah NH road, due to hit by bus bearing Reg.No.KL.2P/7920 on the motorcycle ridden by the claimant. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent, the driver of the bus. 1[st] respondent is the registered owner and 3[rd] respondent is the insurer of the offending vehicle. Total compensation of Rs.2,00,000/- has been claimed. 2. Before the Tribunal, 1[st] respondent remained ex-parte. 3[rd] respondent/insurer filed written statement denying the involvement of vehicle bearing Reg.No.KL.2P/7920 in the accident. Hence, their liability is denied. MACA.No.191 of 2012 3 3. This case has been tried along with O.P (MV) No.430/2008 and a common award was passed. PW1 examined. Exhibits A1 to A11 series were marked from the side of the claimant. There was no evidence from the side of the respondents. 4. Tribunal, on evaluating the evidence as well as the materials produced, came to a conclusion that the vehicle involved in the accident is bus bearing Reg.No.KL-2/P 7920. It is also found that the accident happened due to the rash and negligent driving of the bus by the 2[nd] respondent. So, 3[rd] respondent/insurer has been held liable to indemnify the owner of the vehicle. The Tribunal awarded a total compensation of Rs.77,000/-. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 6. Service of notice complete as against 1[st] and 2[nd] respondents. The 3[rd] respondent insurer appeared through Standing Counsel Adv.A.Sreekala. Heard the learned counsel for the appellant and MACA.No.191 of 2012 4 also the learned Standing Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. 7. According to the learned counsel for the claimant, the claimant is a driver and his monthly income is Rs.4,000/-. But the Tribunal took the monthly income as Rs.2,000/- which according to him is very low. The learned counsel also contend that the compensation awarded is very low and hence seeks for enhancement of compensation on all heads. 8. The accident in this case was on 10.8.2006. Claimant was examined as PW1. Though no document as such produced to prove the income in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** Apex Court reckoned the monthly income of a coolie at the age of 35 notionally as Rs.4,500/-. Here, claimant was 30 year old driver at the time of accident. Copy of his driving licence has been produced as Exhibit A4. Hence, Rs.4,000/- claimed as monthly income is only to be accepted. 9. The learned counsel relies on **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC** MACA.No.191 of 2012 5 **5021]** wherein 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 (`Act' for short) 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. 10. 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 MACA.No.191 of 2012 6 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. 11. In this case, the claimant sustained following injuries: (1) Abrasion over the knee 2x2 cm and 3x2 cm (2) Abrasion left radial aspect (3) X-ray showed both bone fracture of the right forearm. Exhibit A1 discharge card shows that he had undergone inpatient treatment in the hospital from 10.8.2006 to 23.8.2006. Exhibit A2 discharge card shows that again he was admitted on 16.6.2007 and discharged on 29.6.2007. Hence, he had undergone total inpatient treatment for 26 days. Taking into account all those facts Tribunal awarded 3 months loss of income, that can be approved. Monthly, income of claimant has already been taken as Rs.4,000/-. So, refixing the monthly income, towards loss of earning, claimant is entitled to get Rs.4,000x3=Rs.12,000/-. Deducting the amount already awarded, balance would be Rs.6,000/- (Rs.12,000-6,000). Towards bystander expense Tribunal awarded Rs.2,600/- in total. He had undergone total 26 days inpatient treatment. The accident was MACA.No.191 of 2012 7 in the year 2006. So, Rs.200/- per day can be taken towards bystander expenses. Towards bystander expenses the claimant is entitled to get Rs.200x26=Rs.5,200/-. Deducting the amount already awarded, balance would be Rs.2,600/- (Rs.5,200-2,600). 12. Claimant had sustained both bone fracture of right forearm. According to the learned counsel, internal fixation has also been done. Hence, Rs.15,000/- awarded towards pain and suffering is very low. So, taking into account the grievous nature of injuries and period of inpatient treatment undergone by him total amount of Rs.20,000/- is awarded towards pain and suffering. Deducting the amount already awarded, balance would be Rs.5,000/- (Rs.20,00015,000). 13. According to the learned counsel, the claimant was a driver and he suffered both bone fracture of right forearm. He faces difficulties in driving, but only Rs.12,000/- is awarded towards loss of amenities. So, taking into account the facts and circumstances, an amount of Rs.18,000/- is awarded towards loss of amenities. Deducting the amount already awarded, balance would be Rs.6,000/- (Rs.18,000-12,000). So, the claimant is entitled to get MACA.No.191 of 2012 8 enhanced compensation of Rs.19,600/- (Rs.6,000 + 26,00 + 5,000 + 6,000). 14. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.19,600/- (Rupees nineteen thousand six hundred only)** which will carry interest @ 6.5% per annum from the date of petition. The 3rd respondent/insurer shall satisfy 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 appellant 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