Balan C. v. T. Raveendran; United India Insurance Company Ltd; P.P. Abdul Lathef; The New India Assurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** ## **MACA NO. 217 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 274/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **VADAKARA** ## **APPELLANT/PETITIONER:** **BALAN C. AGED 63 YEARS S/O.MADHAVAN,CHALIL HOUSE, KOKKALLOOR P.O, VIA BALUSSERY, KOYILANDY TALUK, KOZHIKODE DISTRICT.** **BY ADV SRI.K.MUHAMMED SALAHUDHEEN** ## **RESPONDENTS/RESPONDENTS:** - **1 T.RAVEENDRAN S/O.CHANGAROTTY, PULIKKOT HOUSE, IYYAD AMSOM DESOM, P.O UNNIKKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. PIN 673 574.** - **2 UNITED INDIA INSURANCE COMPANY LTD DIVISIONAL OFFICE, MAVOOR ROAD, CALICUT-1, PIN 673 001.** - **3 P.P.ABDUL LATHEF POOPYIL HOUSE,MANGAD POST, UNNIKULAM CALICUT 673 574.** - **4 THE NEW INDIA ASSURANCE COMPANY LTD DO II YMCA ROAD, CALICUT 673 001. BY ADVS. S.K.AJAY KUMAR SMT.D.GEETHA SMT.K.SHERIN MOHAN JOHN JOSEPH VETTIKAD** ## **OTHER PRESENT:** **SRI.JOHN JOSEPH VETTIKKAD-R4** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.217/2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.274/2000 on the file of Motor Accidents Claims Tribunal, Vadakara (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), for a total compensation of Rs.3,00,000/-, for the injury sustained by the appellant/claimant in a motor accident occurred on 06.07.1999. 2. It is alleged that on 06.07.1999 at about 6.30 p.m when the appellant/claimant (hereinafter be referred as the claimant) was travelling in a stage carriage bus bearing Reg.No.KL 11 C 8694 from Velliyoor - Parambin Mukal, it hit against another bus bearing Reg.No.KL 11 D 8566 at Parambin Mukal, resulting in serious injuries to the claimant. It is alleged that the accident happened due to the rash and negligent driving of the first respondent, the owner cum driver MACA No.217/2012 3 of bus bearing Reg.No.KL 11 C 8694, in which the claimant was travelling. Second respondent is the insurer of the said vehicle. Subsequently supplemental respondents 3 and 4 are impleaded i.e. the owner and insurer of the other bus. 3. Before the Tribunal, respondents 1 and 3 remained absent. Second respondent filed written statement admitting the insurance coverage with respect to vehicle bearing Reg.No.KL 11 C 8694. But negligence attributed against first respondent is denied. Fourth respondent, insurer of bus bearing Reg.No.KL 11 D 8566, filed written statement admitting the insurance coverage with respect to the said vehicle. The rashness and negligence on the part of the driver of the said bus was denied. The compensation claimed under various heads are also contended to be excessive, exaggerated and exorbitant. 4. Exts.A1 to A13 series marked from the side of the claimant. There was no oral evidence from either side. 5. The Tribunal on evaluating the pleadings as well as MACA No.217/2012 4 the documents found that drivers of both vehicles were responsible for accident and respondents 2 and 4 are liable to pay the amount to the claimant and awarded a total compensation of Rs.1,49,784/- with interest at the rate of 6% per annum from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimant approaches this Court on various grounds stated in the memorandum of appeal. 7. Adv.Smt.Sherin Mohan and Adv.Sri.John Joseph Vettikkad appear respectively for respondents 2 and 4. Notice to respondents 1 and 3 dispensed with at the risk of the appellant. Lower court records were called for and both sides were heard. 8. According to the learned counsel for the claimant, the claimant was a Carpenter and Ext.A7 certificate issued by the Village Officer, Balussery, has been produced to prove that he is a Carpenter. He claimed monthly income of Rs.160/- per day. But the Tribunal taken the income as Rs.1,500/- per MACA No.217/2012 5 month, which according to him is very low. As has been rightly found by the Tribunal, Ext.A7 is not proved by examining the Village Officer. Moreover he is not the competent person to issue a certificate regarding the occupation of the claimant also. 9. In Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court notionally fixed the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. Following that principle, the monthly income of the claimant, who is alleged to be a carpenter, can reasonably fixed as Rs.2,500/- in this accident occurred in the year 1999. 10. 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 damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, MACA No.217/2012 6 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 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 MACA No.217/2012 7 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. 11. 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). 12. 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 and trauma as a consequence of the injuries. In cases of serious injuries, where there is specific medical evidence MACA No.217/2012 8 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. 13. In the present case, the claimant sustained the following injuries: |1.|Fracture shaft of femur right.| |---|---| |2.|Vascular injury on femoral artery.| |3.|Acute renal failure| |4.|Haemodialysis also done| |5.|ORIF (open reduction internal fixation with nail)| |6.|Repair of femoral artery done| |7.|Faciotomy right leg both side| MACA No.217/2012 9 8. Major operation also done 9. Femolar arterteryal injury (total 32 sutured) 10. Back ache 11. Head ache 12. Pain all over the body. 14. The claimant produced Ext.A8, Admission/discharge summary notebook containing the treatment details to show that he has been intermittently undergoing admission and treatment from 06.07.1999 to 17.09.1999 at Medical College Hospital, Calicut. He had undergone 45 days of inpatient treatment. Ext.A5 is the disability certificate issued by a Medical Board certifying 36% permanent disability. That has been adopted by the Tribunal also. In view of the injuries including acute renal failure and fracture shaft of femur right and vascular injury to femoral artery and also the haemodialysis alleged to have been done to the claimant, 36% permanent disability certified by the Medical Board has been rightly accepted by the Tribunal. Alleging to be a carpenter or taking as coolie, his functional disability would be much higher than 36% (See: Raj Kumar , referred above). He was also 51 years of age at the time of accident. So in view of the serious MACA No.217/2012 10 nature of injuries and the facts and circumstances, future prospects at 10% can also be taken for computing the compensation towards permanent disability. [See: Erudhaya Priya v. State Express Transport Corporation Ltd. (2020 ACJ 2159)]. So monthly income of the claimant can be taken as Rs.2,750/- [2,500+250 (10% of 2,500)]. 15. Tribunal awarded Rs.9,000/- towards loss of earnings for six months. Taking into account the serious injuries suffered by the claimant and prolonged treatment, six months loss of earnings taken by the Tribunal can be approved. So re-fixing the amount towards loss of earnings, the amount would be Rs.16,500/- [2,750x6]. Deducting the amount already awarded by the Tribunal, the balance would be Rs.7,500/ - [16,500-9,000]. 16. The claimant was 50 years of age at the time of accident. 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 '11'. So 11 MACA No.217/2012 towards permanent disability, claimant is entitled to get Rs.1,30,680/- [2,750x12x11x36/100]. Deducting the amount already awarded by the Tribunal, the balance would be - Rs.59,400/ [1,30,680-71,280]. Tribunal awarded a total amount of Rs.30,000/- under the head of pain and sufferings, mental shock and agony and loss of amenities and inconvenience. This is a case in which the claimant sustained grievous injuries, resulting in renal failure and he had undergone dialysis also. So taking into account the totality of the facts and circumstances, an amount of Rs.15,000 /- is further awarded under the head pain and sufferings, mental shock and agony and loss of amenities and inconvenience. 17. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.81,900/ - (Rupees eighty one thousand nine hundred only) [7,500+59,400+15,000], which will carry interest at the rate of 7.5% per annum (excluding 2353 days delay caused in filing the appeal) from the date of petition till realisation. Respondent Nos.2 and 4- insurers are directed to pay the additional compensation 12 MACA No.217/2012 granted in this appeal equally, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 18. Appellant/claimant 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, 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/**