Balasubramanian s/o Narayanan v. V.S. Nazar, Ayshabi Veedappara and The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943** **MACA NO. 1578 OF 2012** **AGAINST AWARD DATED 11.1.12 IN OPMV 943/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** BALASUBRAMANIAN S/O.NARAYANAN, VADAKKEPPATT HOUSE VETTIKKATTIRI.P.O, PANJAL,CHERUTHURUTHY, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ## **RESPONDENTS/RESPONDENTS:** 1 V.S.NAZAR S/O.SAIDHU, VALIYAVEETTIL HOUSE, KIZHUBRAUM,MANNUR, PIN 680523 (DRIVER OF KL-9J 2151 MOTOR CYCLE). 2 AYSHABI VEEDAPPARA,KONGAD, PALAKKAD,PANDIYATH HOUSE, VADAKKANCHERRY, PIN 680 582 (0WNER OF KL-9 J 2151 MOTOR CYCLE) 3 THE NEW INDIA ASSURANCE CO.LTD BRANCH OFFICE,JRJ COMPLEX, OTTAPALAM, PIN 679101 POLICY NO.761103/31/08/02/00011969 VALID FROM 5.11.2008 TO 4.11.2009. BY ADVS. SRI.LAL K.JOSEPH SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN BY R3 - ADV.LAL K.JOSEPH **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1578 of 2012 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.943/2009 on the file of Motor Accident Claim Tribunal, Ottappalam. This petiton is filed under Section 166 of the Motor Vehicle Act, 1988 (in short the Act) for the injuries sustained to the appellant out of a motor vehicle accident. 2. It is alleged that on 22.12.2008 the appellant/claimant while riding his motor cycle bearing registration No.KL 9P 6734 and reached near Chuduvalathur service station at Shornur, another motor cycle bearing registration No.KL 9J 2151 ridden by the 1[st] respondent, came in a rash and negligent manner and dashed against the motor cycle ridden by the appellant/claimant. Out of the same, the claimant sustained grievous injuries and was taken to Sevana Hospital. The petitioner claimed Rs.5,00,000/- under various heads. 2[nd] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer of the said vehicle. 3. Before the Motor Accidents Claims Tribunal (in short Tribunal) the respondent Nos.1 and 2 filed joint statement denying all the allegations including negligence attributed against the first respondent. The age, income and occupation of the MACA.No.1578 of 2012 3 appellant/claimant (herein after be referred as claimant) was also disputed. It is also contended that the compensation claimed under various heads are highly excessive and exorbitant. 4. 3[rd] respondent filed written statement admitting the policy coverage and denied negligence attributed against the 1[st] respondent. It is also contended that the accident occurred due to rash and negligent riding of the motorcycle by the claimant. The age, income and occupation of the claimant are not admitted. The amount of compensation claimed under different heads are contended to be excessive. 5. Pws 1 and 2 were examined and Exhibit A1 to A13 were marked as from the side of the claimant. Exhibit B1 is copy of the policy marked from the side of the respondents. Thereafter, on evaluating the evidence and facts and circumstances, the Tribunal entered in to a finding that the accident occurred due to the negligence of the 1[st] respondent. The 2[nd] respondent was held vicariously liable for th act of the 1[st] respondent and the 3[rd] respondent insurer is held liable to make good the loss as per the contract of insurance. An award for Rs.3,39,410/- was passed in total. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant approaches this Court in appeal. MACA.No.1578 of 2012 4 7. Third respondent insurer appear through the Standing Counsel Sri.Lal K.Joseph. Liability is admitted. Hence notice to first and 2[nd] respondent was dispensed with at the risk of appellant. 8. Since, there is no challenge with regard to the liability of the 3[rd] respondent, the issue is only with respect to the quantum of compensation awarded under different heads. 9. The claimant was 54 years at the time of accident. Claimant produced discharge certificates which is marked as A7 series, proves his inpatient treatment for the period 22.12.2008 to 1.1.2009, 8.1.2009 to 27.1.2009, 21.2.2009 to 25.4.2009, 10.9.2009 to 26.10.2009 and 5.5.2010 to 8.6.2010. Total 167 days. 10. According to the learned counsel for the appellant the monthly income was notionally fixed by the Tribunal as Rs.3,000/which is very low. Claimant is alleged to be a coolie. 11. In **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the MACA.No.1578 of 2012 5 claimant. It is also held that 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. 12. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-08-2008 where the claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end of right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in **Ramchandrapa** it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the then state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 13. In the present case, the accident occurred on 22.12.2008. So, the monthly income of Rs.6,000/- claimed by the claimant seems to be reasonable and is hereby accepted. 14. In page No.6 of the award the Tribunal discussed the MACA.No.1578 of 2012 6 ## injuries with reference to discharge certificates Exhibit A7 series, the relevant portion reads as follows: _Ext.A7 series are the discharge summaries issued from the same hospital. The date of first admission was on 22.12.08 and the date of discharge was on 1.1.09. The diagnosis noted as type III B open fracture both bones right leg. He was readmitted on 8.1.09 and discharged on 27.1.09. Again he was admitted on 21.1.09 and discharged on 25.4.09. The diagnosis noted as type III B open fracture both bones right leg on IRS with infection. He was again admitted on 10.9.09 and discharged on 30.11.09. The diagnosis noted as nonunion fracture both bone Rt. leg with bone defect. There after he was admitted on 11-5-10 and discharged on 31.5.2010. The diagnosis noted as hypertrophic nonunion tibia right leg. Then, he was again admitted on 5.5.2010 and discharge on 8.6.2010._ 15. The Doctor was examined as PW2. PW2 is the Orhopaedic Surgeon attached to Govt. Medical College Hospital, Thrissur. Doctor assessed permanent whole body disability of 9% to the petitioner. But based on the admission of Doctor during cross examination that all injuries pertains to a particular limb and fracture was well united, the Tribunal found that percentage of disability assessed by the Doctor is excessive and adopted permanent whole body disability at 6% MACA.No.1578 of 2012 7 to the claimant. 16. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** 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 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. 17. 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). MACA.No.1578 of 2012 8 18. In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been enumerated. 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 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.1578 of 2012 9 19. It is contented by the learned counsel for the appellant that the appellant was examined by the Doctor and issued with the disability certificate fixing permanent disability at 9% but the Tribunal reduced the disability to 6% illegally. 20. In **Raj Kumar** while dealing with the disability certificate and the assessment of the disability by the Tribunal it has been discussed in para No.12 of the judgment that if the Tribunal is not satisfied with the medical evidence produced by the claimant it can constitute a medical board (form a panel maintained by it in consultation with reputed local hospital/medical colleges) and refer the claimant to such medical board for assessment of the disability. So the procedure adopted by the Tribunal by unilaterally reducing the disability at 6% in spite of the disability certificate and supportive evidence of doctor as PW2 that the claimant suffers permanent whole body disability at 9% is not seems to be proper. That is more so in view of the serious nature of injures sustained by the claimant and the long period of inpatient treatment undergone by him. Towards medical expenses Tribunal awarded Rs.1,96,250/-. 21. Injury sustained by the claimant is type III B open fracture both bones right leg on IRS with infection, non-union fracture both bone right leg with bone defect, and hypertrophic non-union tibia right leg. MACA.No.1578 of 2012 10 22. So, in view of the grievous nature of injuries and the long duration of treatment undergone by the claimant 9% whole body disability fixed by PW2 the Doctor Orthopedic surgeon attached to Gov.Medical College Hospital, Thrissur can very well be accepted. Hence, I am of the considered view that whole body disability assessed at 9% by PW2 Doctor is to be accepted for fixing the compensation under the head of the loss of earning power. The claimant was 54 years at the time of accident. So the 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 11. So the compensation towards the future loss of earning power would be Rs.6,000x12x11x9/100=Rs.71,280/-. Deducting the amount already awarded by the Tribunal under the head of permanent disability, the balance would be Rs.71,28023,760=Rs. **47,520/-** 22a. Next aspect is with regard to the loss of earnings. According to the learned counsel for the claimant, the discharge certificate produced from the side of claimant would prove that from 22.12.2008 till 08.6.2010, he had been intermittently MACA.No.1578 of 2012 11 undergoing inpatient treatment. Hence, he cannot go for work for all those periods. Hence, loss of earning ought not have been restricted to 6 months by the Tribunal. 23. The learned Standing Counsel for the insurer on the other hand vehemently objects in granting loss of earning exceeding an year. The accident was on 22.12.2008. The claim petition was filed on 08.12.2009. The claimant is awarded with compensation towards loss of future earning power. Hence, as rightly contended by the Standing Counsel, I find that claimant is not entitled for any loss of earning exceeding a period of one year. The compensation claimed in the claim petition is also only Rs.50,000/-. However, taking into account the gravity of the injuries and prolonged treatment, I am inclined to grant **loss of earning** for one year to the claimant. That will come to Rs.6,000x12=Rs,60,000/-. Deducting the amount already awarded the balance amount the claimant is entitled to get is **Rs.42,000/-** (60,000-18,000). 24. It has come out that the claimant undergone inpatient treatment for 167 days. Since the accident is in the year 2008, an amount of Rs.250/- can be taken towards daily expenses towards bystander. Hence, the claimant is entitled to get a total amount of Rs.41,750/- (167x250) towards **bystander expenses** . Deducting MACA.No.1578 of 2012 12 the amount already awarded the balance amount would be **Rs.13,150/** - (41,750 - 28,600). 25. Towards pain and suffering Tribunal awarded Rs.15,000/against a claim of Rs.50,000/-. According to the learned counsel, it has come out in evidence that there is Osteomylitis Rt. tiabia, so that wound will never heal. He had also type IIIB open fracture both nones Rt. Leg on IRS with infection. Hence an amount of **Rs.15,000/-** is further awarded towards **pain and suffering** . Towards loss of amenities an amount of Rs.25,000/-has already been awarded. So no further enhancement is required under that head. 26. For the reasons stated above the claimant is entitled to get **enhanced compensation of Rs.1,17,670/- (Rupees one lakhs seventeen thousand six hundred and seventy)** (47,520 + 42,000 + 13,150 + 15,000) claimant is entitled to realise the above amount with interest at **7.5%.** There was a delay of 103 days in filing the appeal while allowing C.M.Appln. No.1880/2012 this Court specifically excluded the said days for computing the interest. Hence the claimant is not enabled for the the said 103 days. The 3rd respondent, the Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of MACA.No.1578 of 2012 13 certified copy of this judgment. The appellant shall provide the Bank account details (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 learned 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