Arun P. v. Muhammed Vinu and Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **MACA NO. 1419 OF 2012** **AGAINST THE ORDER IN OPMV 194/2009 DATED 22ND DAY OF JUNE 2010 ON THE FILE OF THE HON'BLE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** ARUN P., AGED 22 YEARS, S/O LAKSHMANAN PARAPPALLI HOUSE, PANTHEERANKAVU POST, PAYYADIMEETHAL, KOZHIKODE DISTRICT BY ADV SMT.K.V.RESHMI ## **RESPONDENTS/RESPONDENTS:** 1 MUHAMMED VINU, S/O ABDULLAKOYA HOUSE NO.11/512, ERAVELY FORT, COCHIN ERNAKULAM DISTRICT-682 001 2 THE NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE,NOOR COMPLEX, P.O. MAVOOR ROAD, KOZHIKODE-673 028 3 SHAMSUDHEEN, S/O AHAMMED, MELEPULAPARAMBIL HOUSE, OLAVANNA POST KOZHIKODE-673 025 4 ANOOP, AGED 22 YEARS, S/O LAKSHMANAN PARAPPALLI HOUSE, PANTHEERANKAVU POST, KOZHIKODE-673 019 5 THE UNITED INDIA INSURANCE CO.LTD., CITY BRANCH-I, RAMEEZ ARCADE, CHEROOTY ROAD, KOZHIKODE-673 001 BY ADV SMT.RAJI T.BHASKAR -R5 SRI.LAL GOERGE - R2 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 05.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 1419 OF 2012 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P.(M.V) No.194/2009 on the file of Principal Motor Accidents Claims Tribunal, Ernakulam. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation for the injury sustained by the appellant/claimant (hereinafter be referred as the claimant). 2. It is alleged that the accident occurred on 26.4.2008 at about 5.00 p.m., while the claimant was riding on the pillion seat of a motorcycle and when reached at Koodathumpara, a car bearing Reg.No.KL-07-AR-5316 came from Thodayadu side hit against the motorcycle. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent, owner cum driver of the car. 2[nd ] respondent is the insurer of the car. Respondents 3 to 5 are owner, rider and insurer of the motorcycle. The claim is for a total amount of Rs.2,00,000/-. 3. Before the Tribunal, only respondents 2 and 5 filed written MACA NO. 1419 OF 2012 3 statements admitting the policy coverage with respect to the respective vehicles. 5[th] respondent denied liability. 4. Exhibits A1 to A9 and C1 marked from the side of the claimant. There was no oral evidence from either side. Tribunal on evaluating the evidence as well as the materials produced, came to a conclusion that the accident happened due to the rash and negligent driving of the car by the 1[st] respondent/owner cum driver. The Tribunal awarded a total compensation of Rs.65,700/-. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 6. Service of notice to respondents 1, 3 and 4 were dispensed with at the risk of the appellant. Adv.Lal K George, Standing Counsel appeared on behalf of the 2[nd] respondent/insurer. 5[th] respondent appeared through Adv.Smt.Raji T Bhaskar. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 2[nd] respondent/insurer as well as 5[th] respondent. Lower court records were called for and perused. MACA NO. 1419 OF 2012 4 7. According to the learned counsel for the claimant, the claimant was a student and sales man. He claimed monthly income of Rs.3,000/-. But the Tribunal taken the annual income at Rs15,000/which according to the learned counsel for the claimant is very low. The learned counsel also would contend that the medical bills for Rs.66,689/- had been produced, but the Tribunal was inclined to award only Rs.25,000/- towards medical expenses. It is also contended that the compensation awarded under the heads of pain and suffering, loss of amenities, transportation charges, extra nourishment etc. are very low. 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. 9. The learned counsel relies on **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** wherein general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the MACA NO. 1419 OF 2012 5 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 personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, MACA NO. 1419 OF 2012 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. 11. 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). 12. 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. 1419 OF 2012 7 13. In this case, Exhibit A2 wound certificate produced shows that the claimant sustained following injuries: Comminuted fracture mid shaft (Rt) tibia, crack fracture, medial malleolus (Rt) ankle and multiple injuries all over the body. Exhibits A2 and A3 series are the reference cards which would prove that he was admitted on 30.4.2008 and discharged on 11.5.2008 in continuation of treatment at Medical College Hospital. Exhibit A5 series are the out patient records. He had undergone 27 days inpatient treatment. 14. Exhibit C1 shows that he had united fracture tibia, right leg with interlocking nail in situ, knee flexion right full, difficulty in squatting and cross logged. Permanent disability of 10% was assessed and that has been taken by the Tribunal also for computation of compensation. 15. With regard to the income, the claim is Rs.3,000/- per month. He was a student as well as sales man and he was 19 years old at the time of accident. In **National Insurance Co.Ltd. v. Fathim Zuhara** , Division Bench of this Court fixed the monthly income of an Engineering student at Rs.12,000/- in an accident 8 MACA NO. 1419 OF 2012 occurred on 10.09.2005. In **Basanti Devi and Anr. v. Divisional Manager, The New India Assurance Company Ltd. and Ors. Civil Appeal Nos.7435-7436 of 2021** , the Apex court had taken the monthly income of an Engineering Student at Rs.20,000/- in an accident occurred on 10.03.2011. So in view of the facts and circumstances, as the claimant was 19 years old student at the time of accident and also claims to be a sales man, monthly income of Rs.3,000/- claimed by him can very well be accepted. 16. According to the learned counsel for the claimant, he had undergone 27 days inpatient treatment but only Rs.2,700/- ie. @ Rs.100/- per day, has been awarded by the Tribunal towards bystander expense. The accident was in the year 2008, hence Rs.250/- per day can be taken as bystander expense. Hence, towards bystander expense the claimant is entitled to get Rs.6,750/(Rs.250x27). Deducting the amount already awarded the balance would be Rs.4,050/- (Rs.6750-2,700). The claimant was a student cum sales man and he had undergone inpatient treatment for 27 days. So, Rs.500/- awarded towards extra nourishment seems to be very low. Hence, towards extra nourishment, a total amount of MACA NO. 1419 OF 2012 9 Rs.1,500/- can be awarded. Deducting the amount already awarded, balance would be Rs.1,000/- (Rs.1,500-1,000). 17. The main argument is with regard to the medical expenses. It has been contended that though the medical bills for Rs.66,689/- has been produced as per Exhibit A7 series, only Rs.25,000/- has been awarded by the Tribunal for the sole reason that Rs.25,000/- only has been claimed. It does not appear to be reasonable, since Rs.66,689/- has been spent by the claimant towards medical expenses. Just compensation would be the amount actually spent and not the amount claimed. Tribunal has a duty to award just compensation, it can be in excess of what is claimed also (See **Ningamma & Another v. United India Insurance Co.Ltd : (2009) 13 SCC 710 : AIR 2009 SC 3056** ). Hence, towards medical expenses claimant is entitled to get Rs.66,689/-. Deducting the amount already awarded, balance would be Rs.41,689/- (Rs.66,68925,000). 18. It has come out that the claimant had undergone inpatient treatment for 27 days. He had sustained Comminuted fracture mid MACA NO. 1419 OF 2012 10 shaft right tibia, crack fracture medial malleolus right ankle, multiple injuries all over body. An amount of Rs.66,689/- has been spent towards medical expenses. So, taking into account all those factors, towards pain and suffering an amount of Rs.20,000/- can be awarded. Deducting the amount already awarded balance would be Rs.10,000/- (Rs.20,000-10,000). 19. According to the learned counsel for the claimant, he had been to hospital on several occasions and further O.P cards has also been produced along with medical bills. Hence towards transportation charges an amount of Rs.250/- is further awarded. As per Exhibit C1, the claimant sustained 10% disability, that has been taken by the Tribunal also for the purpose of computation. That aspect is not further challenged. 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 '18'. So, towards permanent disability, the claimant is entitled to get Rs.3,000x12x18x10/100=Rs.64,800/-. MACA NO. 1419 OF 2012 11 Deducting the amount already awarded balance would be Rs.37,800/- (Rs.64,800-27,000). Towards loss of amenities according to the learned counsel no amount is awarded by the Tribunal. So taking into account nature of injuries and the period of treatment undergone by the claimant Rs.10,000/- can be awarded towards loss of amenities. Hence the claimant is entitled to get enhanced compensation of Rs.1,04,789/- rounded off to Rs.1,04,800/-. (Rs.10,000 + 37,800 + 4,050 + 1,000 + 41,689 + 10,000 + 250). 20. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.1,04,800/(Rupees one lakh four thousand eight hundred only)** which will carry interest @ 6% per annum from the date of petition excluding the period of delay of 628 days in filing the appeal. The 2nd 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, deducting the amount due towards balance court fee from the appellant/claimant. 21. Appellant/claimant shall provide the Bank account details MACA NO. 1419 OF 2012 12 (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 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