Bindu James v. United India Insurance Co. 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. 2071 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 113/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **KALPETTA** ## **APPELLANT/PETITIONER:** **BINDU JAMES AGED 36 YEARS W/O.JAMES, KAVUMPADATH HOUSE, VAZHAVATTA POST, MUTTIL AMSOM, VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADV SMT.CELINE JOSEPH** ## **RESPONDENT/RESPONDENT NO.3:** **THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., DO-V NO.25, SHANKARANARAYANA BUILDING, MG ROAD, BANGALORE-1, BANGALORE, (INSURER OF KA-17A/3614 TATA SUMO) BY ADVS. P.K.MANOJ KUMAR - Copy served P.K.MANOJKUMAR** **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.2071/2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.113/2009 on the file of the Motor Accidents Claims Tribunal, Kalpetta (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation of Rs.2,00,000/- for the injury sustained by the appellant/claimant in a motor accident occurred on 23.12.2008 due to hit by Tata sumo bearing Reg.No.KA-17/A-3614 at Meenangady. 2. It is alleged that the accident occurred due to the rash and negligent driving of the first respondent, driver of the offending vehicle. Second respondent is the owner and third respondent is the insurer of the offending vehicle. 3. Before the Tribunal, there were three respondents. Respondents 1 and 2 filed written statement jointly denying the negligence on the part of the first respondent and challenging the claim raised under various heads. It is also MACA No.2071/2012 3 contended that the vehicle is insured with the third respondent. Third respondent filed separate written statement admitting the policy coverage with respect to the offending vehicle. 4. On the side of the claimant, Exts.A1 to A8 series and Ext.C1 were marked. There was no oral evidence from either side. 5. The Tribunal on evaluating the pleadings as well as the documents found that the accident happened due to the rash and negligent driving of the first respondent, the driver of the offending vehicle, and the third respondent was held liable to indemnify the 2[nd] respondent, the owner of the offending vehicle. A total compensation of Rs.64,900/- was awarded with interest at the rate of 7.5% from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellant/claimant (hereinafter be referred as the claimant) approaches this Court in appeal on MACA No.2071/2012 4 various grounds stated in the memorandum of appeal. 7. Learned Standing Counsel, Sri.P.K. Manojkumar, appeared on behalf of the sole respondent/3[rd] respondent, insurer. Lower court records were called for. Both sides were heard. 8. According to the learned counsel for the claimant, the claimant was a Tailor by profession and her daily income was Rs.250/-. Ext.A6 salary certificate issued by the employer was also produced to prove the income. But the Tribunal notionally fixed the income as Rs.3,000/-, which according to her is very low. She would also contend that the claimant was a skilled labourer and she sustained grievous injuries and Medical Board certified permanent whole-body disability at 5%, which according to her will not reflect the functional disability and it is higher than 5% as certified by the Medical Board. Hence she seeks for fixation of functional disability on higher side than that is shown in disability certificate, Ext.C1. 9. The learned Standing Counsel for the insurer on the MACA No.2071/2012 5 other hand would contend that Medical Board has issued a certificate certifying 5% permanent whole-body disability and that also has been adopted by the Tribunal, the same can be followed and no further enhancement is required in the facts and circumstances of this case. 10. The first aspect to be considered is with regard to the income of the claimant. She claimed Rs.250/- per day and produced Ext.A6 salary certificate. But it could not be proved properly by examining the employer. 11. 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/-. Following that principle in Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], 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/-. MACA No.2071/2012 6 12. In this case the claimant is claimed to be a Tailor. Hence the monthly income can very well be taken as Rs.6,000/-. 13. 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, 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 MACA No.2071/2012 7 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 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. 14. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary MACA No.2071/2012 8 damages (general damages). 15. 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 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 MACA No.2071/2012 9 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. 16. In the present case, the claimant sustained Type I open comminuted fracture both bones of left leg. Surgery was done on 23.12.2008. Initially she was treated at Leo Hospital, Kalpetta and subsequently she was shifted to Medical College Hospital, Kozhikode and there she had undergone total inpatient treatment for 16 days. The Medical Board certifies 5% permanent whole-body disability also. 17. The Award passed by the Tribunal also would go to show that she appeared before the Tribunal and the Tribunal noted that there is difference in length to the left leg and the claimant disclosed about the disability, fracture to left leg and pain while sitting and standing and also about the inflammation on the left leg. She is also said to have pain while bending the left knee and no force could be applied to her left leg. Being a Tailor, the injury mainly to the left leg due MACA No.2071/2012 10 to both bone fracture and shortening of leg will cause great difficulty in doing the work of tailor. Hence, 5% whole-body disability certified by the Medical Board can be taken as 10% functional disability as per the dictum laid down in Raj Kumar, referred above. 18. So the compensation to be awarded to the claimant can be fixed as follows: The Tribunal has taken loss of earning for three months. The accident was in the year 23.12.2008 and the claim petition was filed on 24.03.2009. So three months loss of earning taken by the Tribunal can very well be followed. So re-fixing the loss of earning, the amount will be Rs.18,000/- [6,000x3]. Deducting the amount already awarded by the Tribunal, the balance would be Rs.9,000/[18,000-9,000]. Towards bystander expenses, according to the learned counsel, only Rs.100/- per day has been taken. The accident was in the year 2008. So Rs.250/- per day can be taken towards bystander expenses. On that head, the claimant would be entitled to get Rs.2,400/- [250x16 – 1,600]. Towards pain and suffering only MACA No.2071/2012 11 Rs.8,000/- has been awarded by the Tribunal. The claimant sustained both bone fracture of left leg and she had undergone a surgery also and she had been under inpatient treatment for 16 days at Medical College Hospital, Kozhikode. So taking into account the facts and circumstances, an amount of Rs.15,000/can be awarded towards pain and suffering. Deducting the amount already awarded under that head, the claimant would be entitled to get Rs.7,000/- [15,000-8,000]. 19. The claimant was 32 years old at the time of accident. Her monthly income has already been taken as Rs.6,000/-. 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 '16'. So towards permanent disability, the claimant is entitled to get Rs.1,15,200/- [6,000x16x12x10/100]. Deducting the amount already awarded, the balance would be Rs.84,600/ - [1,15,20030,600]. 20. The learned counsel for the claimant would further MACA No.2071/2012 12 contend that inspite of the permanent disability sustained by the claimant and shortening of her leg and various difficulties which she is facing in discharging the duties, no amount is awarded by the Tribunal towards loss of amenities and conveniences. Following the principles in Raj Kumar, an amount of Rs.10,000/- seems to be reasonable under that head. 21. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.1,13,000/ - (Rupees one lakh thirteen thousand only) [9,000+2,400+7,000+84,600+ 10,000], which will carry interest at the rate of 7.5% per annum (excluding 187 days delay caused in filing the appeal) from the date of petition till realisation. 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. 22. 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 MACA No.2071/2012 13 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/**