C. Rajendran Muttathil v. P. Kamaruddin, Haridas P., National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943** **MACA NO. 1341 OF 2011** **AGAINST THE AWARD DATED 29.07.2008 IN O.P.M.V.NO.1231/2005 OF** **MOTOR ACCIDENTS CLAIM TRIBUNAL, OTTAPPALAM.** ## **APPELLANT/PETITIONER:** **C.RAJENDRAN MUTTATHIL HOUSE,VALIAPARAMBU,THEKKE VAVANNUR.P.O,, MEZHATHOOR,NOW RESIDING AT VANIVIL VEEDU,, THOTTINKARA,KOTTUKALKONAM,KATTACHAL KUZHI,, BALARAMAPURAM,THIRUVANANTHAPURAM. BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH** ## **RESPONDENTS/RESPONDENTS:** **1 P.KAMARUDDIN(OWNER OF KL 9663 JEEP) S/O.C.MOIDEENKUTTY,PONNAZHATH HOUSE,, THIRUMITTAKODE,VIA.,KOOTANAD,PATTAMBI,, PALAKKAD DISTRICT-679303. 2 HARIDAS.P.(IDRIVER OF KL 9L 9663 JEEP) S/O.ACHUTHAN NAIR,PULIYATH KALAVARA HOUSE,, THIRUMITTACODE,PALAKKAD DISTRICT-679533. 3 NATIONAL INSURANCE CO.LTDEAST FORT COMPLEX,PALAKKAD,678001,POLICY NO.570705/31/05/, 6300006568,VALID FROM 21.4.2005 TO 20.4.2006. BY ADVS. SRI.A.HAROON RASHEED SMT.DEEPA GEORGE** ## **SMT DEEPA GEORGE-R3** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1341 of 2011 **2** ## **M.R.ANITHA, J.** ## **----------------------------------------M.A.C.A No. 1341 of 2011` ----------------------------------------** Dated this the 11[th] day of January, 2022 ## **JUDGMENT** The appeal has been filed against the award in O.P.M.V No.1231/2005 on the file of Motor Accidents Claims Tribunal, Ottappalam. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act). 2. Appellant/claimant alleged to have sustained injuries in a motor vehicle accident occurred on 23.08.2004 at about 10.45 a.m. at Mezhathoor Kakkarath pady mosque road. The appellant claimed a total compensation of Rs.1,53,000/- under various heads before the Tribunal. 3. It is alleged that while the appellant was standing near the Mazhathoor-Kakkarathpady (Mosque Road) near estate-pady, a jeep bearing Reg.No.KL-9-L-9663 driven by the 2[nd] respondent came in a rash and negligent manner and hit the appellant/claimant (herein after be referred as claimant) whereby the claimant sustained serious injuries. Immediately the appellant was taken to Jubilee Mission Medical College, Thrissur and there undergone treatment from 23.08.2005 to 07.09.2005 as impatient. It is alleged that the accident happened due to M.A.C.A No. 1341 of 2011 **3** the rash and negligent driving of the 2[nd] respondent. The 1[st] respondent is the owner of the offending vehicle and the 3[rd] respondent is the insurer of the vehicle. 4. Before the Tribunal, 1[st] and 2[nd] respondent remained ex parte and the the 3[rd] respondent filed written statement and denied the allegation that the accident occurred due to the rash and negligent driving on the part of the 2[nd] respondent. It is contended that the accident happened due to the negligence of the claimant. The claimant was put to strict proof regarding the age, income and occupation of the claimant. The insurance coverage of the offending vehicle is admitted. 5. The doctor was examined as PW1. Exts. A1 to A9 were marked from the side of the claimant. After evaluation of the documents and evidence adduced, the Tribunal awarded a total compensation of Rs.47,950/-, together with interest at the rate of 7% per annum. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant is before this Court in appeal. Respondents 1 and 3 filed vakalath. There was no appearance on behalf of the 2[nd] respondent. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the 3[rd] respondent. 7. According to the learned counsel for the appellant, the M.A.C.A No. 1341 of 2011 **4** injured was a coolie and his monthly income claimed is Rs.4,000/- per month. But the Tribunal fixed the monthly income notionally as Rs.2,000/-. That is very low. It is also contended that though PW1, the Doctor, who issued the disability certificate was examined and certificate is marked as Ext.A8, certifying disability at 11%, the Tribunal arbitrarily fixed the disability at 3%. 8. The learned counsel for the claimant also claimed enhancement of compensation under the head of pain and suffering since Rs.15,000/- alone was awarded under that head by the Tribunal. 9. The learned counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 10. The finding regarding negligence on the part of the 2[nd] respondent and liability of 3[rd] respondent are not in dispute. The only points emerges for consideration is with regard to the quantum of compensation awarded under the head of loss of earnings and loss of future earnings. 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex M.A.C.A No. 1341 of 2011 **5** 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/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. 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]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , 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/-. In the M.A.C.A No. 1341 of 2011 **6** said decision, the Apex Court held that, a labourer in an unorganized sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 13. The Tribunal found that no evidence has been adduced to prove the income of the claimant and hence notionally it was fixed as Rs.2,000/- per month. In view of the principles laid down by the Apex Court, being a coolie worker, taking into the fact that the incident occurred on 23.08.2004, the income of Rs.4,000/- claimed by the claimant is seems to be just and reasonable and I here by accept Rs.4,000/- as the monthly income of the claimant. 14. Claimant was coolie aged aged 33 years at the time of accident. Final diagnosis of the injuries as per the discharge certificate is multiple rib fracture, (L) clavicle fracture and multiple lacerated wound on (L) upper arm and right foot. 15. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) M.A.C.A No. 1341 of 2011 **7** SCC 343 = 2010 KHC 5021) the apex court has elaborately discussed the general principle relating to compensation in injury cases. 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). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed in detail. 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. 16. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (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). M.A.C.A No. 1341 of 2011 **8** 17. 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. 18. The Tribunal awarded loss of earnings for a period of four months. The disability certificate marked as Ext.A8, the doctor who issued the certificate examined as PW1, would state that claimant was under rest at home for 3 months. So loss of earnings for four months granted by the Tribunal is seems to be reasonable. In the head of loss of earnings, the appellant is entitled to get 4,000x4=16000. Amount already awarded is to be deducted ie.16,000-6,000, it will come to 10,000/-. 19. According to the learned counsel, the Tribunal went wrong in fixing the disability at 3%, inspite of the fact that the Doctor who issued disability certificate was examined as PW1 and disability certificate is marked as Ext.A8, certifying whole body disability at 11%. The learned counsel for the 3[rd] respondent on the other hand contended that Ext.A8 is not by a medical board and Ext.A8 is not issued by the M.A.C.A No. 1341 of 2011 **9** Doctor who treated the injured also. Hence, 3% disability adopted by the Tribunal is proper. 20. The Doctor who issued disability certificate was examined as PW1 categorically stated how he arrived at 11% whole body disability. PW1 is Assistant Professor in Orthopaedis, Medical College Hospital, Thirssur. Though he was cross examined at length, nothing could be brought out for discrediting the testimony or the certificate issued. In Raj Kumar v. (supra), the Apex Court has laid down the principle that if at all the Tribunal is not satisfied with the medical evidence adduced by the claimant, the Tribunal can refer the claimant to a competent Medical Board to assess the disability. Without resorting to that procedure, the Tribunal has went wrong in unilaterally reducing the percentage of disability to 3%. In view of the serious nature of the injuries sustained by the claimant and in the light of the evidence of PW1, Doctor I do not find any justification in refusing to accept the evidence of PW1 and Ext.A8 disability certificate. 21. The claimant is a coolie and as per Ext.A8 he was having malunited fracture left clavicle, malunited fracture of ribs 3,4,5 and 6 left shoulder and gross stiffness of left shoulder. Therefore, injuries would definitely cause inconvenience for doing coolie work. So M.A.C.A No. 1341 of 2011 **10** the disability assessed at 11% by the Doctor seems to be just and proper and it is hereby accepted. 22. It has already been found that the claimant is entitled for loss of earnings for 4 months at the rate of Rs.4,000/- per month. Deducting the amount already awarded by the Tribunal, the balance would be Rs.10,000/-. 23. It is found that permanent whole body disability is 11%. It has been held in **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)]** the suitable multiplier to be applied is 16 since the claimant was 32 years old at the time of accident. Hence claimant is entitled to get towards loss of future earning power Rs.84,480/- (4,000x12x11x16/100). From that, the amount already awarded by the Tribunal is (Rs.10,800) to be deducted. The balance amount will be Rs.73,680/-. 24. Towards the by stander expenses, the Tribunal awarded Rs.2,400/-. Claimant had undergone impatient treatment in the hospital for 16 days. The accident was occurred in the year 2004. So M.A.C.A No. 1341 of 2011 **11** towards the by stander expenses, the claimant is entitled to get Rs.200/per day. Hence under the head of by stander expenses, claimant is entitled to get 200x16=3200. Deducting the amount already awarded, the balance would be Rs.800/-. The amount of Rs.15,000/- awarded towards the pain and suffering is seems to be reasonable. But in view of the permanent disability found at 11%, the claimant is also entitled to get an amount of Rs.7,500/- towards the loss of amenities. Hence, the claimant is entitled to get an enhanced compensation of Rs. 91,980/(10,000+73,680+800+7,500). 25. In the result, claimant is entitled to get an enhanced compensation of Rs.91,980/- in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment. 26. The appeal is filed with a petition to condone delay of 1013 days. While condoning the delay by order dated 27.09.2021 in C.M.Appl.No.1/2011 (CMAP.No.2048/2011), it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest M.A.C.A No. 1341 of 2011 **12** for the period of 1013 days is excluded. 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 a certified copy of this judgment. SD/- **M.R.ANITHA** **JUDGE** rps/