Bijumon @ Biju v. Sinu and Santhosh and The Manager New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** ## **MACA NO. 2507 OF 2013** **(THE AWARD DATED 14-2-2013 IN O.P.(MV) No.668/2006 ON THE FILE** **OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA)** ## **APPELLANT/APPELLANT:** BIJUMON @ BIJU, S/O.DIVAKARAN RESIDING AT KALLAMPILLIL HOUSE, ARIKUZHA KARA MANAKADU VILLAGE,THODUPUZHA TALUK. BY ADVS. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU ## **RESPONDENTS/RESPONDENTS:** 1 SINU, S/O.BHASKARAN RESIDING AT KALLOLICKAL HOUSE, KIZHAKOMBU KARA KOOTHATTUKULAM VILLAGE, THODUPUZHA TALUK, PIN.685584 2 SANTHOSH S/O.CHELLAPPAN, THAKKOMBATTU HOUSE, EDAYAR KOOTHATTUKULAM, PIN-686 662. 3 THE MANAGER NEW INDIA ASSURANCE CO.LTD, PERUMBAVOOR BRANCH PIN.683556 BY ADV P.K.BABU ADV.P.K BABU-R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 2507 OF 2013 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.668/2006 on the file of Motor Accidents Claims Tribunal, Thodupuzha. 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 in a motor accident. 2. It is alleged that the accident occurred on 04.08.2005 at Mecherikunnu in Piravom-Koothattukulam road, while the appellant/claimant was riding a motorcycle through the said road due to hit by an autorickshaw bearing Reg.No.KL-17A/9074 resulting in grievous injuries to the appellant/claimant. 3. It is alleged that the accident happened due to the rash and negligent driving of the autorickshaw by the 1[st] respondent. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. Total compensation of Rs.1,50,000/- has been claimed. 4. Before the Tribunal 2[nd] respondent remained ex-parte. 1[st] MACA NO. 2507 OF 2013 3 and 3[rd] respondent/insurer filed written statement. Negligence on the part of the 1[st] respondent is denied. It is contented that the accident happened due to the rash and negligent riding of motorcycle by the appellant/claimant. 3[rd] respondent admitted the policy coverage with respect to the offending vehicle. The age, income and occupation of the appellant/claimant (herein after be referred as claimant) was also disputed. 5. Exhibits A1 to A10 series were marked from the side of the claimant. Exhibit B1 marked from the side of the 3[rd] respondent. 6. Tribunal on evaluating the pleadings as well as the materials produced, found that the accident happened due to the rash and negligent driving of the autorickshaw by the 1[st] respondent. It is further found that first respondent did not have valid driving license at the time of accident and there is violation of policy conditions. A total compensation of Rs.1,02,030/- awarded. 3[rd] respondent was directed to pay the amount with liberty to recover from the 2[nd] respondent/owner. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant came up in appeal MACA NO. 2507 OF 2013 4 before this Court on various grounds stated in the memorandum of appeal. 8. Notice was duly served to respondents 1 and 2 and there was no appearance on behalf of them. Adv.P.K.Babu, Standing Counsel appeared on behalf of 3[rd] respondent. 9. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the 3[rd] respondent Insurance Company. Lower court records were called for and perused. 10. According to the learned counsel for the claimant, claimant was a mechanic aged 30 years and claimed a monthly income as Rs.6,000/-, but the Tribunal fixed the monthly income notionally as Rs.4,000/- which according to him is very low. It is also contended that the claimant sustained grievous injuries and he had undergone 15 days inpatient treatment. The medical board certifies 10% permanent disability, but the Tribunal arbitrarily reduced the percentage of disability to 5% and that has caused great prejudice to the claimant. It is also contended that no amount was awarded towards loss of amenities. Hence, enhancement was sought on all those heads. MACA NO. 2507 OF 2013 5 11. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no interference is called for at the instance of this Court in this appeal. It is also contended that the 1[st] respondent has no valid driving license. Hence, the pay and recovery ordered by the Tribunal has to be maintained. 12. The claimant is said to be a T.V. mechanic and monthly income claimed is Rs.6,000/-. The monthly income has been notionally taken by the Tribunal in the absence of evidence adduced from the side of the claimant as Rs.4,000/-. 13. 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 claimant. It is also held that in a given case if the claim made is so exorbitant or if the MACA NO. 2507 OF 2013 6 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. 14. 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. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end to 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's case 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 present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 15. The claimant was 30 years old at the time of accident on 04.08.2005 and is alleged to be a mechanic. Hence, as per the MACA NO. 2507 OF 2013 7 settled principles the monthly income of the claimant can be taken as Rs.5,000/- instead of Rs.4,000/- fixed by the Tribunal. 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 MACA NO. 2507 OF 2013 8 compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary damages (general damages). 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 MACA NO. 2507 OF 2013 9 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. 19. In this case, the claimant sustained following injuries: _1. Fracture of right first metacarpal_ _2. Fracture of right femur shaft with abnormal mobility._ He had undergone inpatient treatment in Chazhikkat Hospital, Thodupuzha, for 15 days. He had undergone surgery is interlocking nailing SA and K wire fixation of metacarpal fracture. POP was applied. Exhibit A8 series medical bills for Rs.25,072/- have been produced. The claimant also produced disability certificate, Exhibit A10 issued by the Medical Board certifies 10% permanent disability. 20. Hence, taking into account the nature of injuries and the period of treatment undergone by the claimant, loss of income for 4 months can be granted instead of 3 months awarded by the Tribunal. Accordingly, towards loss of earning, the claimant is entitled to get Rs.5,000x4=Rs.20,000/-. Deducting the amount already awarded the MACA NO. 2507 OF 2013 10 balance would be Rs.8,000/- (Rs.20,000-12,000). Towards extra nourishment and bystander expense as well as pain and suffering reasonable amount has already been awarded by the Tribunal. 21. The next aspect is with regard to the disability. According to the learned counsel for the claimant though the Medical Board certified 10% permanent disability, the Tribunal arbitrarily taken the disability as 5% which caused great prejudice to the claimant. 22. The learned Standing Counsel for the insurer on the other hand would contend that none of the members of the Board were examined and disability certificate also would not says it is a whole body disability. Hence, 5% permanent disability taken by the Tribunal is reasonable. However, the injuries sustained by the claimant is Fracture of right femur shaft with abnormal mobility along with Fracture of right first metacarpal. It also states that the claimant walks with mild limb on right side. Medical Board after assessment fixed permanent disability as 10%. Taking into account the description of the injuries and period of treatment as well as the disability noted by the Medical Board, 10% disability assessed by the Medical Board MACA NO. 2507 OF 2013 11 can be taken as whole body. The Tribunal further applied multiplier of '16'. 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 '17', since, the claimant was 30 years at the time of accident. Hence, towards permanent disability the claimant is entitled to get Rs.5,000x12x17x10/100=Rs.1,02,000/-. Deducting the amount already awarded the balance would be Rs.63,600/- (Rs.1,02,00038,400). 23. In view of the nature of injuries and the period of treatment undergone by the claimant as well as the disability assessed by the Medical Board an amount of Rs.10,000/- also can be awarded towards loss of amenities. So the claimant is entitled for enhanced compensation of Rs.81,600/-(Rs.63,600 + 8,000+10,000). 24. In the result, the claimant is allowed to realise enhanced compensation of **Rs.81,600/- (Rupees eighty one thousand six** MACA NO. 2507 OF 2013 12 **hundred only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition ie. 18.10.2006 till realization excluding the period of delay of 192 days in filing the appeal. The 3[rd] respondent 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. 25. It has been found by the Tribunal that first respondent was not having valid driving license at the time of accident. I.A. No.1365/2010 has been filed by the insurer calling for the production of driving license and badge of the 1[st] respondent. Though notice was served duly upon 1[st] and 2[nd] respondents, they did not produce the documents. Hence, an adverse inference was drawn against them. In this appeal also though notice was duly served upon 1[st] and 2[nd] respondents, there was no appearance on behalf of them and hence direction of pay and recovery ordered by the Tribunal is maintained. 26. The claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account MACA NO. 2507 OF 2013 13 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