Baburaj v. K.C.Abdulla Kutty @ Kunhappa and ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944** ## **MACA NO. 1827 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 4016/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **THRISSUR** ## **APPELLANT/PETITIONER:** ## **BABURAJ** **S/O CHELLI SWAMI, KOLOTH CHALAKKAL HOUSE, P.O, CHERAKKAPARAMBU, VIA ANGADIPURAM, MALAPPURAM DISTRICT BY ADV SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 K.C.ABDULLA KUTTY @ KUNHAPPA S/O MAMMED, KADAMBOTT HOUSE, OTHUKKUNGAL, P.O, MATTATHUR, MALAPPURAM DISTRICT 676 505** - **2 MOOSA .K.S S/O MUHAMMED @ BAPPU, KADKADAMBOTT HOUSE, OTHUKKUNGAL, P.O, MATTATHUR, MALAPPURAM DISTRICT 676505** - **3 THE NEW INDIA ASSURANCE CO. LTD REPRESENTED BY DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD, DIVISIONAL OFFICE, THRISSUR 688001** **BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW** ## **OTHER PRESENT:** **P.JACOB MATHEW-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **08.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1827/2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV).4016/2003 on the file of Motor Accidents Claims Tribunal, Thrissur (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming total compensation of Rs.4,55,500/-, on account of the injury sustained by the appellant in a motor accident occurred on 16.04.2003 due to hit with a jeep bearing Reg.No.KL-10/D 1719 at Angadipuram junction. 2. It is alleged that the accident happened due to the rash and negligent driving of the 2nd respondent. First respondent is the owner of the vehicle and third respondent is the insurer. 3. Before the Tribunal, respondents 1 & 2 remained exparte. Third respondent filed written statement admitting policy coverage with respect to the offending vehicle. The allegation regarding the age, income and occupation are denied. Rashness and negligence on the part of the second respondent was also denied. MACA No.1827/2012 3 4. PW1 examined and Exts.A1 to A10 were marked from the side of the appellant. There was no evidence from the side of the respondents. 5. Tribunal, on evaluating the facts and circumstances and evidence adduced found 2[nd] respondent responsible for the accident and awarded a total compensation of Rs.2,05,650/- which was allowed to be realised with interest at the rate of 8% per annum from the date of petition. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal appellant came up in appeal for the various grounds stated in the memorandum of appeal. 7. Adv. Sri. P. Jacob Mathew entered appearance on behalf of third respondent, insurer. Notice as against respondents 1 and 2 dispensed with. Lower court records were called for and perused and both sides were heard. 8. According to the learned counsel for the appellant, the appellant was a mason and he claimed a monthly income of Rs.4,500/-. But the Tribunal taken the income as Rs.3,000/- MACA No.1827/2012 4 per month which according to him is very low. He would also contend that even though PW1, Professor of Orthopedics attached to Medical College Hospital, Alleppey, issued a disability certificate certifying 30% permanent disability while he was working at Government Medical College, Thrissur, the Tribunal taken only 20% disability for assessment of compensation which also according to him cause prejudice to the appellant. Hence he seeks for enhancement of compensation on all heads. 9. The learned Staidness Counsel Sri. P. Jacob Mathew for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded and as such no enhancement is required at the instance of this Court. 10. Though the appellant claims a monthly income of Rs.4,500/-, as rightly contended by the learned counsel for the insurer, there was no evidence as such to prove the monthly income as Rs.4,500/-. MACA No.1827/2012 5 11. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] , the Hon'ble 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/-. So in the absence of any evidence adduced from the side of the claimant, the monthly income can notionally be fixed as Rs.4,000/- since the accident is in the year 2003 and the appellant was 44 years of age at that time. 12. According to the learned counsel, the appellant sustained very serious injuries and he had undergone more than 43 days inpatient treatment. PW1, the Orthopedic Surgeon attached to the Medical College Hospital, Thrissur, assessed the permanent disability as 30%. 13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 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 MACA No.1827/2012 6 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, 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 MACA No.1827/2012 7 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. 14. 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). 15. In paragraph No.5 of the above decision, 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 MACA No.1827/2012 8 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 16. To prove the injuries, appellant produced Ext.A4 wound certificate and Ext.A5, original O.P. Tickets. The injuries sustained by him as extracted by the Tribunal are closed fracture right femur, comminuted fracture P1 of left MACA No.1827/2012 9 ring finger, middle finger and index finger, wedge compression fracture T11, T12 & L1, lacerated wound left thigh, multiple lacerations left hand, abrasion right thigh, multiple bodily injuries. He had undergone 20 days inpatient treatment. The Medical bills for Rs.32,750/- has been produced. With regard to the disability assessed and taken by the Tribunal as has been rightly contended by the learned counsel the Doctor has assessed the permanent disability as 30% and has given evidence in tune with Ext.A6. 17. As per Raj Kumar , if the Tribunal is not satisfied with the medical evidence produced by the appellant, it is the duty of the Tribunal to refer the appellant to Medical Board to satisfy about the genuineness of the medical records produced by him. 18. Hence course adopted by the Tribunal in unilaterally reducing the permanent disability to 20% not seems to be reasonable especially in view of the series of injuries sustained by the claimant and the period of treatment undergone by him. Moreover the Award would go to show that the appellant was MACA No.1827/2012 10 present before the Tribunal and he was found walking with stick and crutches and there was injuries on his right thigh. Even though it has been stated in the Award that during cross examination PW1 deposed that the disability certificate is incomplete and there is chance for reduction of disability, there is no such statement in the deposition of PW1. So the reduction of permanent disability from 30% to 20% by the Tribunal seems to be unreasonable and hence I am of the view that in view of the serious nature of the injuries as well as the period of treatment undergone by him, the permanent disability at 30% assessed by the Doctor can only be accepted. Moreover, the appellant alleged to be a mason. The injuries and the disability would definitely affect his future earning capacity. So I do not find any reason to reduce the disability from that has been assessed by the Doctor, who is an Orthopedic Surgeon attached to Medical College Hospital, Thrissur, who had examined the appellant and has given evidence in tune with Ext.A6, disability certificate issued by him. MACA No.1827/2012 11 19. So the permanent disability of the appellant has been taken as 30% as proved through the evidence of PW1 and Ext.A6 disability certificate. 20. In view of the nature and the period of treatment undergone by him, loss of earning for six months awarded by the Tribunal can be maintained. So re-fixing the amount towards the loss of earning, it will come to Rs.24,000 [4,000x6]. Deducting the amount already awarded, the balance would be Rs.6,000/ - [24,000-18,000]. 21. Next aspect is with regard to the compensation towards permanent disability. It has already been found that the monthly income of the appellant can be taken as Rs.4,000/-. The appellant was 27 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 '17'. So, towards future loss of earning power, appellant is entitled to get Rs.2,44,800/[4,000x12x17x30/100]. From that, the MACA No.1827/2012 12 amount already awarded by the Tribunal to be deducted. So the balance would be Rs. 1,22,800/[2,44,800-1,22,000]. 22. The learned counsel would further contend about the enhancement of compensation towards pain and suffering as well as to the loss of amenities. 23. In view of the nature of injuries and the period of treatment undergone by him, an amount of Rs.25,000/- can be awarded towards pain and suffering. Deducting the amount already awarded, the balance would be Rs.5,000/ - [25,00020,000]. 24. Towards loss of amenities an amount of Rs.10,000/has already been awarded. In view of the injuries and the treatment undergone by him, an amount of Rs.10,000/further is awarded towards loss of amenities. 25. In the result, the appellant is allowed to realise enhanced compensation of Rs.1,43,800/- [6,000+1,22,800+ 5,000+10,000] (Rupees one lakh forty three thousand eight hundred only), which will carry interest at the rate of 6% pe r MACA No.1827/2012 13 annum from the date of petition till realisation. The 3[rd] 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. The disbursement of additional compensation to appellant 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 shall provide his Bank Account details (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