Biju Mathew S/o Mathew v. The National Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944 MACA NO. 2163 OF 2012** **AGAINST THE AWARD DATED 05.11.2011 IN OPMV 62/2008 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER:** BIJU MATHEW S/O.MATHEW, THURUTHIYIL HOUSE, CHELOOR, MARAKKADAVU POST, PULPALLY, WAYANAD DISTRICT. BY ADV SMT.CELINE JOSEPH ## **RESPONDENT/RESPONDENT NO.3:** THE NATIONAL INSURANCE COMPANY LTD. KOZHIKODE BRANCH BY ADV SMT.SARAH SALVY SMT SARAH SALVY-RESPONDENT. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.2163 OF 2012 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (MV) No.62/2008 on the file of Motor Accidents Claims Tribunal (in short Tribunal), Kalpetta. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant/claimant (herein after be referred as claimant) in a motor accident occurred on 06.11.2007, while the claimant was travelling in a Maruthi Car bearing Reg.No.KL-11 D Temp 8651. It is alleged that due to the rash and negligent driving of the 1[st] respondent, the vehicle hit on a stump of a tree situated at the side of the road and overturned and thereby claimant sustained grievous injuries. 2[nd] respondent is the owner of the vehicle and 3[rd] respondent is the insurer. Total compensation of Rs.3,00,000/- has been claimed. 2. Before the Tribunal, 1[st] and 2[nd] respondent remained exparte. The 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness MACA NO.2163 OF 2012 3 and negligence on the part of 1[st] respondent is denied. The compensation claimed under various heads are also contended to be excessive. 3. Exhibits A1 to A7 series and Exhibit C1 were marked from the side of the claimant. There was no oral evidence from either side. Tribunal on evaluating the pleadings as well as the documents found that the accident happened due to the rash and negligent driving of the 1[st] respondent and 2[nd] respondent was held liable for the act of the 1[st] respondent. 3[rd] respondent insurer is held liable to make good the loss sustained by the 2[nd] respondent. The Tribunal awarded a total compensation of Rs.63,080/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 5. Respondent/insurer appeared through Standing Counsel Adv.Smt.Sarah Salvy. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the respondent/insurer. MACA NO.2163 OF 2012 4 Lower court records were called for and perused. 6. According to the learned counsel, claimant was 32 years old at the time of accident and he was an electrician and was having a monthly income of Rs.6,000/-. But, the Tribunal notionally fixed his income as Rs.3,000/- per month, which is very low. 7. The learned counsel also would contend that the claimant sustained very serious injuries but a meager compensation has been awarded by the Tribunal. 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. Though the claimant had claimed that he is an electrician and was earning an amount of Rs.6,000/- per month, no evidence is forthcoming to substantiate the actual income of the claimant. 10. In **Ramachandrapa v. manager, Royal Sundaram Alliance** MACA NO.2163 OF 2012 5 **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/-. 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 in the year 2008. The Apex Court taken the monthly income of the vegetable vendor at Rs.6,500/-. 11. In the present case, since the claimant alleged to be an electrician, and the accident was in the year 2007, in view of the settled position of law, his monthly income can notionally be fixed as Rs.6,000/- instead of Rs.2,000/- taken by the Tribunal. 12. 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 MACA NO.2163 OF 2012 6 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. 13. 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). 14. 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.2163 OF 2012 7 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. 15. The claimant in this case sustained Closed comminuted fracture of distal 3[rd] shaft of humorous (Left). Exhibit A3 is the wound certificate; Exhibit A5 is the discharge summary issued form MACA NO.2163 OF 2012 8 Assumption Hospital, Wayanad. It would prove that he had undergone inpatient treatment for 5 days. 16. According to the learned counsel, implant was fixed and surgery was undergone by the claimant and hence, the amount awarded towards pain and suffering is very low. Admittedly, he had undergone inpatient treatment for 5 days. The medical records proves that the claimant sustained Closed comminuted fracture of distal 3[rd] shaft of humorous (Left). He had undergone Open Reduction and Internal Fixation and come out that he had surgical scars left lower arm. The claimant has difficulty in lifting weight, partial ankylosis left elbow with terminal restriction of extension. 17. Exhibit C1 disability certificate issued by the Medical Board certifies 3% whole body disability. That has been accepted by the Tribunal. Being an electrician the disability suffered will result in functional disability also to a considerable extent. So, taking all those factors into account 3% permanent disability assessed by the Medical Board can very well be accepted. MACA NO.2163 OF 2012 9 18. So, taking into account, the nature of injuries as well as the disability sustained by the claimant, loss of earning for 3 months awarded by the Tribunal can be approved. Re-fixing the amount, the compensation towards **loss of earning** would be Rs.6,000 x 3 = Rs.18,000/-. Deducting the amount already awarded the balance would be **Rs.9,000/-** (Rs.18,000-9,000). Towards bystander expense Tribunal awarded at Rs.500/- total. He had undergone total 5 days inpatient treatment. The accident was in the year 2007. So, Rs.250/- per day can be taken towards bystander expenses. Towards **bystander expenses** the claimant is entitled to get Rs.250x5=Rs.1,250/-. Deducting the amount already awarded, balance would be **Rs.750/-** (Rs.1250-500). Towards extra nourishment only Rs.500 can be awarded. An additional amount of **Rs.500/-** is awarded towards **extra nourishment** . Towards pain and suffering only Rs.8,000/- has been awarded by the Tribunal. In view of the serious nature of injuries and period of treatment undergone by him an amount of Rs.15,000/- is awarded towards **pain and** MACA NO.2163 OF 2012 10 **suffering** . Deducting the amount already awarded the balance would be **Rs.7,000/-** (Rs.15,000-8,000). 19. Next is with regard to compensation towards permanent disability. 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 '16', since, the claimant was 32 years at the time of accident. Hence, towards **permanent disability** the claimant is entitled to get Rs.6,000x12x16x3/100=Rs.34,560/-. Deducting the amount already awarded the balance would be **Rs.16,200/-** (Rs.34,560-18,360). In view of the injuries, disability and period of treatment undergone by the claimant an amount of **Rs.5,000/-** further awarded towards **loss of amenities** . So the claimant is entitled for the enhanced compensation of Rs.38,450/- (Rs.9,000 + 750 + 500 + 7,000 + 16,200 + 5,000). MACA NO.2163 OF 2012 11 20. In the result, the claimant is allowed to realise enhanced compensation of **Rs.38,450/- (Rupees thirty eight thousand four hundred and fifty only)** in this appeal, which will carry interest at the rate of **6.5%** per annum from the date of petition till realisation. The respondent/insurer is directed to pay 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 claimant 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