Antony S/o. Ouseph v. Vinoy S/o. Ouseph, Jinosh S/o. Rajappan, and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** ## **MACA NO. 2026 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1234/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **ANTONY S/O. OUSEPH, MENOTH HOUSE, MOONJELY DESOM, MUKUNDAPUPRAM TALUK. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** **1 VINOY S/O. OUSEPH, MUNDANMANI HOUSE, KUTTIKKAD P.O., THRISSUR DISTRICT-680 721. 2 JINOSH S/O. RAJAPPAN, KAITHELIPARAMBIL HOUSE, VELOOKKARA P.O., PARIYARAM-686 021. 3 NATIONAL INSURANCE CO. LTD. IRINJALAKUDA-680 121. BY ADV SRI.RAJAN P.KALIYATH** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2026/2011 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.1234/2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.2,62,000/-, which was limited to Rs.2 lakhs, on account of the injury sustained by the appellant/claimant (hereinafter be referred as the claimant) in a motor accident. 2. It is alleged that on 10.04.2008 at about 9 a.m while the claimant was standing on the side of road at Anamala Junction, Chalakudy, a goods autorickshaw bearing Reg. No.KL-5/F 4023 driven by the 2[nd] respondent hit the claimant resulting in grievous injuries to his right leg. It is alleged that the accident happened due to the rash and negligent driving of the autorickshaw by the second respondent. First MACA No.2026/2011 3 respondent is the owner and third respondent is the insurer of the offending vehicle. 3. Before the Tribunal respondents 1 and 2 remained exparte. Third respondent – insurer filed written statement admitting the policy coverage with respect to the offending vehicle. 4. There was no oral evidence on either side. Exts.A1 to A9 and Ext.X1 were marked from the side of the claimant. 5. The Tribunal on evaluating the materials produced from the side of the claimant as well as the pleadings passed an Award of Rs.83,140/- with interest at the rate of 7% from the date of petition till realisation. 6. 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. 7. Learned Standing Counsel Sri. Rajan P. Kaliyath appeared on behalf of the 3[rd] respondent-insurer. Since the 3[rd] respondent has admitted the insurance policy, separate notice MACA No.2026/2011 4 was not issued to the other respondents. Lower Court Records were called for and perused. 8. Heard both sides. 9. According to the learned counsel for the claimant, though Rs.4,000/- was claimed as monthly income, the Tribunal fixed the monthly income as Rs.2,000/-, which is very low. 10. As per the principles laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] and Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735] the monthly income ought to have been notionally fixed as Rs.6,500/-, the learned counsel contends. 11. The claimant was admittedly 68 years old at the time of accident. Accident happened in the year 2008. So bearing in mind the principles laid down in Ramachandrappa and the facts and circumstances, I find it just and proper to take the income as Rs.4,000/- as claimed in the petition. 12. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC MACA No.2026/2011 5 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. 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, MACA No.2026/2011 6 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. 13. 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). 14. In paragraph No.5 of the above judgment, the heads coming under pecuniary damages and non pecuniary damages have been discussed. In personal injury cases, compensation MACA No.2026/2011 7 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 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. MACA No.2026/2011 8 15. The learned counsel would further contend that there is amputation of right lower leg including the ankle and foot and though disability certificate issued by the doctor certified 40% permanent disability, the Tribunal adopted only 20% permanent disability to fix the compensation, which, according to him, is illegal and improper. He would also contend that the compensation awarded towards loss of earnings as well as pain and suffering and loss of amenities are very less comparing the grievous nature of injuries sustained by the claimant. 16. Ext.A3 wound certificate issued from St.James Hospital, Chalakudy, proved that the claimant was admitted there with near total amputation involving right lower leg including the ankle and foot. Ext.A4 discharge card showed that the claimant admitted there on 10.04.2008 and discharged on 21.04.2008. The Orthopedic Surgeon certified 40% permanent disability. The claimant had undergone total inpatient treatment for 12 days. He is an old man, aged 68 years, at the time of accident and he is claimed to be an MACA No.2026/2011 9 agriculturist and amputation of right lower leg including the ankle and foot would definitely cause loss of earning power. Hence the loss of earnings can very well be taken for six - months. So the claimant is entitled to get Rs.16,000/ [4,000x6–8,000]. 17. The main dispute of the learned counsel is with regard to the compensation awarded towards the disability suffered. The Orthopedic Surgeon, as per Ext.A5, certified 40% permanent disability. Admittedly his right lower leg was amputated below knee and in such cases as per Schedule I of the Workmen's Compensation Act, 1923, the percentage of loss of earning capacity is as follows: Amputation below knee with stump exceeding 8.89 cms but not exceeding 12.70 cms is 50, amputation below knee with stump exceeding 12.70 cms is 50, amputation of one foot resulting in end bearing is 50, amputation through on foot proximal to the metatarsophalangeal joint is 50. 18. In view of the above, I am of the opinion that the percentage to be fixed, as per the Workmen's Compensation Act, at 50% functional disability. So legally 50% functional MACA No.2026/2011 10 disability can be taken due to the amputation of leg below knee. Claimant was 68 years old at the time of accident. Hence as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] as approved by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the suitable multiplier would be '5' as applied by the Tribunal. Thus the compensation towards loss of earning power is Rs.1,20,000/[4,000x12x50x5/100]. - Deducting the amount already awarded, balance is Rs.96,000/ [1,20,000-24,000]. 19. Next is with regard to the compensation awarded towards pain and suffering. The Tribunal awarded Rs.20,000/-. In view of the fact that the claimant was an old man of 68 years and one of his legs below knee was amputated, I am of the view that, Rs.10,000/- further can be awarded towards pain and suffering. Towards loss of amenities and convenience, only Rs.8,000/- was awarded by the Tribunal. In view of the nature of injuries, especially due to the amputation of the leg below knee, an amount of Rs.20,000/- is awarded MACA No.2026/2011 11 towards loss of amenities. Deducting the amount already awarded, the balance would be Rs.12,000/ - [20,000-8,000]. 20. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.1,34,000/- (Rupees one lakh thirty four thousand only) [16,000+96,000+10,000+ 12,000], which will carry interest at the rate of 7.5 % per annum from the date of petition till realisation (excluding the period of 28 days delay caused in filing the appeal). The third respondent insurer shall satisfy 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, after deducting the liability of the appellant/claimant towards Balance Court Fee. The disbursement of additional compensation to appellant/claimant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellant/claimant shall provide his Bank Account details MACA No.2026/2011 12 (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the 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** ## **shg/**