Baby Shakkeela v. Vijayachandran Pillai and others (MACA 862 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943** ## **MACA NO. 862 OF 2013** **AGAINST THE AWARD DATED 30.10.2012 IN OPMV 1028/2010 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/CLAIMANT:** **BABY SHAKKEELA AGED 32 YEARS W/O.ANZAR, KAVUVILA MANTHARA, EDAVA P O, THIRUVANANTHAPURAM-695311** **BY ADVS.** **SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE.** ## **RESPONDENTS/RESPONDENTS:** - **1 VIJAYACHANDRAN PILLAI S/O.RAVINDRAN PILLAI, VAYALKARA PUTHEN VEEDU, NEDUNGOLAM, POOTAKULAM, KOLLAM-691334** - **2 UDAYAKUMAR S/O.LEKSHMANAN PILLAI, VARUVILA VEEDU, POOTHAKULAM, PARAVOOR, KOLLAM-691301** - **3 THE ORIENTAL INSURANCE CO PUNALUR BRANCH -691305** - **4 SARASWATHY AMMA VADAKKEVILA MANTHARA, EDAVA P O, THIRUVANANTHAPURAM695311** - **5 NASIMUDEEN S/O.ELMINNISA, KAVUVILA MANTHARA, EDAVA P O, THIRUVANANTHAPURAM-695311** - **6 THE NEW INDIA ASSURANCE CO.LTD MUNCIPAL BUS STAND ATTINGAL, THIRUVANANTHAPURAM-691101 BY ADVS. SRI.P.K.BABU SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 862 of 2013 **2** ## **JUDGMENT** The appeal has been filed against the award passed in O.P.M.V No.1028/2010 on the file of Motor Accidents Claims Tribunal, Kollam (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injury sustained by the appellant/claimant in a motor accident occurred on 03.07.2009, while she was travelling in an Auto-Rickshaw bearing Registration No.KL-4G-1089 along with two others through VarkalaParavoor road and when the Auto-Rickshaw reached near Kapil bridge, a mini lorry bearing registration No.KL-02-K-7823 driven by the 2[nd] respondent came in a rash and negligent manner hit on the AutoRickshaw on which the appellant/claimant (herein after be referred as claimant) was travelling, whereby the claimant sustained serious injuries. It is alleged that the accident happened due to the rash and negligent driving of the 2nd respondent, the driver of the mini lorry. 1[st] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. Respondents 4, 5 and 6 are the owner, driver and insurer of the Auto-Rikshaw respectively on which the injured was travelling. A total compensation of Rs.10,00,000/- has been claimed. 2. Before the Tribunal, 3[rd] respondent alone contested the M.A.C.A No. 862 of 2013 **3** matter and others remained ex parte. The 3[rd] respondent admitted the insurance coverage with respect to the offending vehicle and the allegation of negligence on the part of the 2[nd] respondent is denied. It is further contended that the accident happened due to the rash and negligent driving of the 5[th] respondent, driver of the Auto-Rickshaw. 3. Exts. A1 to A13 were marked from the side of the claimant. No oral evidence was adduced from either side. After hearing both side, the Tribunal awarded a total compensation of Rs.2,11,000/-. Aggrieved by the quantum of compensation awarded by the Tribunal, the claimant approaches this Court in appeal for the various grounds stated in the memorandum of appeal. 3[Rd] respondent insurer appeared through Standing Counsel, Adv. V.P.K.Panicker. Since the policy coverage with respect to offending vehicle has been admitted by the 3[rd] respondent, service of notice as against respondents 2 and 5 is dispensed with. Lower court records were called for and perused. Others though served, there was no appearance on behalf of them. 4. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the 3[rd] respondent. 5. There is no dispute with regard to the accident and finding regarding negligence on the part of the 2[nd] respondent. The only M.A.C.A No. 862 of 2013 **4** dispute between the parties is with respect to the quantum of compensation awarded by the Tribunal under various heads. According to the learned counsel for the claimant (hereinafter be referred as the claimant), though the claimant was a fish vendor, monthly income was notionally taken as Rs.3,000/- by the Tribunal. That is very low. It is further contended that the amount of compensation awarded under the other heads are also very low. Hence she seeks for compensation on all other heads. 6. The incident was in the year 2009. The claimant alleged to be a fish vendor, aged 32 years and claimed monthly income of Rs.7,000/-. It is true that she could not produce any document to prove his actual income. 7. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the 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/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts M.A.C.A No. 862 of 2013 **5** of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. 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 resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 8. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganized sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court M.A.C.A No. 862 of 2013 **6** accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 9. Since the accident in the present case was in the year 2009 and the claimant is 32 years old fish vendor, as per the principles laid down in the above decisions, her monthly income can reasonably be taken as Rs.7,000/-. 10. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the Apex Court has elaborately discussed the general principle relating to compensation in injury cases. 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 detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating to 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 case of serious injuries, where there is specific medical M.A.C.A No. 862 of 2013 **7** evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (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. 13. The claimant produced Exts.A2 wound certificate, Exts.A9 discharge summary and Ext.A10 discharge card issued from the Medical College Hospital, Thiruvananthapuram. The above mentioned documents would prove that the claimant had undergone impatient treatment for a period of 36 days. The claimant suffered the following injuries:- 1) fracture to humerus right, with fracture clavicle 2) fracture both bone of forearm and shoulder right, facial injury and head injury. M.A.C.A No. 862 of 2013 **8** As per Ext.A9 discharge summery, she was admitted on 31.07.2009 and discharged on 27.08.2009. Ext.A10 another discharge card issued from Medical College Hospital, Thiruvananthapuram would prove that she had undergone treatment from 16.11.2009 to 24.11.2009. Ext.A11 photograph shows the nature of injuries sustained by the petitioner. Ext.A13 series O.P.tickets would show the prolonged treatment undergone by the claimant. 14. In view of the serious nature of injuries sustained by the claimant and the period of treatment undergone by her, 6 moths loss of earning awarded by the Tribunal can be maintained. Hence towards loss of earning, the compensation would be Rs.7,000x6=42,000/-. Deducting the amount already granted, the balance would be **Rs.24,000/-** (42,000-18,000). 15. Towards the by stander expenses, Tribunal awarded Rs.7,200/-. It has come out that the claimant had undergone in-patient treatment for 36 days. The accident occurred in the year 2009. So towards the by stander expense, the claimant is entitled to get Rs.250/per day. Hence under the head of by stander expenses, claimant is entitled to get 250x36=9,000. After deducting the amount already awarded, the balance would be **Rs.1,800/-** (9,000-7,200). Towards M.A.C.A No. 862 of 2013 **9** extra nourishment, the Tribunal awarded only Rs.2,000/-. In view of the prolonged treatment undergone by the claimant and the serious nature of injuries sustained by the claimant, an amount of Rs.3,000/- can be granted towards extra nourishment. Deducting the amount already granted, the balance would be **Rs.1,000/-** (3,000-2,000). 16. Next is with respect to the compensation awarded for permanent disability. Though Medical Board issued disability certificate certifying 40% disability, the Tribunal took the disability as 15%. It has found by the Tribunal that the certificate is not admissible in evidence because it was not issued for medicolegal purposes and it is issued for the purpose of getting the benefit of disabled person from the Government. But taking it as an indicator of disability sustained by the claimant since claimant sustained severe injuries, Rs.86,400/- awarded by the Tribunal towards permanent disability by taking the disability as 15%. Finding so entered into by the Tribunal is totally irrational and illegal since 40% Permanent Locomotor disability is assessed in relation to RTA. It is also certified that it is not likely to be improved. But at the same time, 40% permanent disability is not certified as whole body, it is also specified as Locomotor. The claimant is a fish vendor. The disability assessed would affect her occupation as fish vendor M.A.C.A No. 862 of 2013 **10** considerably. So disability assessed by the Medical board as 40% locomotor can be taken as 30% whole body disability. The claimant admittedly was aged 32 years at the time of accident. As per **Sarla** **Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '16'. Hence towards permanent disability, the claimant is entitled to get 7,000x12x16x30/100=4,03,200. Deducting the amount already awarded, the balance would be **Rs.3,16,800/-** (4,03,200-86,400). Just and reasonable compensation seems to have been awarded towards pain and suffering and loss of amenities and hence no enhancement is called for under any other heads. Hence, the claimant is entitled to get enhanced compensation of **Rs.3,43,600/-** (3,16,800+24,000+1,800+1,000). 17. In the result, claimant is allowed to realize enhanced compensation of **Rs.3,43,600/-** (Three lakhs forty three thousand six hundred) in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of M.A.C.A No. 862 of 2013 **11** receipt of certified copy of this judgment. The disbursement of enhanced 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.D162475/2016 dated 07.11.2019. Appellant/claimant shall provide her 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, within one month from the date of receipt of certified copy of this judgment. Sd/- **M.R.ANITHA, JUDGE** rps/