C. Usha v. Naseer, Abdul Gafoor Kallai and Oriental Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 MACA NO. 1858 OF 2012** **AGAINST THE AWARD PASSED IN OPMV 36/2008 DATED 28.1.12 BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANT/PETITIONER:** C.USHA, AGED 35 YEARS, W/O.SUNIL KUMAR K.V., CHERAKKARA HOUSE, P.O.PUTHUKKAI, PUTHUKKAI VILLAGE, NILESHWAR(VIA), KASARAGOD DISTRICT. BY ADV SMT.T.SUDHAMANI **RESPONDENTS/RESPONDENTS:** 1 K.NASEER, S/O.MUHAMMED, KALLAI HOUSE, BENGALAM P.O., NILESHWAR(VIA), KASARAGOD DISTRICT PIN 671 314. (DELETED) 2 ABDUL GAFOOR KALLAI, S/O.YUSUF, ANJILLATH BENGALAM P.O. NILESHWAR (VIA, KASARAGOD DISTRICT PIN-671 314 3 THE BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LIMITED KANNUR, KANNUR P.O., KANNUR DISTRICT PIN-670 001. (THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 07/1/2022 IN I.A.NO.2/2021) BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE ADV. SRI.A.ARUNKUMAR-R2 ADV.SMT K.S SANTHI – R3 ADV.GEORGE A.CHERIAN -R3 ## **RESPONDENTS/RESPONDENTS:** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.1858 OF 2012 2 ## **JUDGMENT** Dated this the 17[th] day of June, 2022 This appeal has been filed against the award passed in O.P.(M.V) No.36/2008 on the file of Motor Accidents Claims Tribunal, Kasaragod (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation due to the injury sustained by the appellant/claimant (hereinafter be referred as the claimant). 2. Accident occurred on 25.6.2007 while the claimant was travelling in a bus bearing Reg.No.KL-13-B-5697 from Kanhangad to Puthukkai, due to collision of bus with tempo van came from the opposite side. It is alleged that accident happened due to the rash and negligent driving of the bus by the 1[st] respondent. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. The claim is for a total amount of Rs.20,00,000/-. 3. Before the Tribunal, 1[st] and 2[nd] respondent remained ex- MACA NO.1858 OF 2012 3 parte. 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence attributed against the 1[st] respondent is denied. It is further contended that the accident happened due to the negligence of the driver of the tempo van. Hence, the owner, driver and insurer of the tempo van are necessary parties to the proceedings. Compensation claimed under various heads are also contended to be exorbitant and excessive. 4. Exhibits A1 to A11 series marked from the side of the claimant. There was no oral evidence from either side. Tribunal on evaluating the pleadings and documents, came to a conclusion that the accident happened due to the rash and negligent driving of the bus by the 1[st] respondent and he is responsible for the accident and 2[nd] respondent is vicariously liable for the act of the 1[st] respondent. The 3[rd] respondent/insurer is held liable to indemnify the 2[nd] respondent. The Tribunal awarded a total compensation of Rs.7,53,100/-. MACA NO.1858 OF 2012 4 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 6. Notice was issued to the respondents. 1[st] respondent was deleted from the party array. 2[nd] respondent appeared through Adv.Arunkumar A. Adv.George A. Cherian, appeared on behalf of the 3[rd] respondent/insurer. Heard the learned counsel for the claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. 7. I.A. No.1/2021 has been filed to receive additional documents. Additional documents produced are original medical bills showing treatment expenses of Rs.4,66,669.79/-. Since the bills pertains to the petitioner and are all in original showing expenses met after the passing of award by the Tribunal on 28.1.2012, ranging from 18.7.2012 onwards upto 18.12.2020, after hearing both sides, those additional bills produced are accepted as additional evidence and I.A. No.01/2021 is allowed. Additional documents produced and marked as Exhibit A12 series (14 in number). MACA NO.1858 OF 2012 5 8. According to the learned counsel, the claimant was a collection agent aged 35 years and was having monthly income of Rs.3,000/-. But the Tribunal taken the income notionally as Rs.2,500/-, which according to her is very low. She would also contend that though the Medical Board certified 85% permanent disability, Tribunal taken only 60% permanent disability. That is also unreasonable. She would also contend that the compensation awarded towards pain and suffering, bystander expenses as well as transportation charges are very low. Hence, the learned counsel claims for enhancement of compensation on all the above heads. 9. The learned Standing Counsel for the 3[rd] respondent/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. 10. The first aspect is with regard to the monthly income. In **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court has MACA NO.1858 OF 2012 6 notionally fixed the monthly income of a coolie in an accident occurred in the year 2004 at Rs.4,500/-. 11. In the present case, since the claimant was 35 years old and the accident was in the year 2006 as per Ramachandrappa monthly income of Rs.3,000/- claimed can be accepted. 12. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** 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 MACA NO.1858 OF 2012 7 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). 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, 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. 14. 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, MACA NO.1858 OF 2012 8 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). 15. 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. 16. In the present case, the claimant produced Ext.A3 wound certificate and Ext.A6 discharge summaries. Ext.A3 wound certificate is issued form KMC Hospital, Mangalore. It would show crush injury right thigh with soft tissue avulsion extending up to vulvo and glutal region and crush injury right leg. Ext.A6 discharge summaries are issued from KMC Hospital, Mangalore, also noted crush injury right lower limb with type IIIC open fracture femur and tibia with femoral MACA NO.1858 OF 2012 9 artery rupture. Above knee amputation was done on 28.6.2007. It would also reveal that she was referred to plastic surgery for further management. Discharge summaries would show that she had undergone inpatient treatment from 25.6.2007 to 22.8.2007; 10.6.2008 to 23.6.2008; 08.5.2009 to 11.5.2009 and 31.8.2010 to 15.9.2010. Discharge summary would also reveal that she had undergone inpatient treatment from 31.1.2008 to 02.2.2008. It would show that the claimant had undergone traumatic amputation right thigh with SSG for raw area. Now she has a painful neuroma on the Lat.Cut Nerve of thigh distribution. She had undergone total 89 days inpatient treatment. Originally Tribunal awarded Rs.4,22,100/towards medical and miscellaneous expenses. During the pendency of this appeal as per the order in I.A. No.1/2021, Ext.A12 series to the tune of Rs.4,66,669.79/- issued from KMC Hospital Pharma and Medical Stores were produced and accepted as additional evidence. 17. The learned counsel would also vehemently contend about the award of compensation towards permanent disability. Ext.A7 is MACA NO.1858 OF 2012 10 the disability certificate issued by District Disability Board, Kanhangad, certifying 85% permanent disability of right lower limb. But the Tribunal taken 60% disability as per Entry 19 of Schedule I of Workmen Compensation Act. It is to be noted that the claimant was a young lady, 35 years old at the time of accident. The claimant is a collection agent. Ext.A9 salary certificate issued by the Secretary, Gulf Returnees Welfare Co-operative Society Ltd. dated 12.7.2007 certified that the claimant had been working in the Society as Day Deposit Collection Agent till she met with accident on 25.6.2007. So, being a daily collection agent the amputation of leg above thigh would affect her earning capacity to a great extent. Being a collection agent she will have to move from place to another for collection. So amputation of a leg above knee would affect her capacity to work drastically. Hence, 85% permanent disability of lower limb certified by the Medical Board can be taken as 85% functional disability as per **Raj Kumar** referred above, taking into account the nature of her work. Since the disability above 50% claimant would also be entitled to get compensation towards loss of future prospects. (See **Pappu** MACA NO.1858 OF 2012 11 **Deo Yadav v. Haresh Kumar and other (AIR 2020 SC 4424)** and **Jagdish v Mohan and Others [2018 (4) SCC 571]** ). 18. In **National Insurance Company Ltd. v. Pranay Sethi** **[2017 (4) KLT 662 (SC)]** , the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 40% future prospects. In the present case, the claimant was 35 years old lady at the time of accident, monthly income has already been taken as Rs.3,000/-. So, the claimant is entitled to get 40% addition of future prospects, Hence, monthly income would be Rs.3,000+1,200 (40% of 3,000)=Rs.4,200/-. 19. In view of the nature of injuries including the amputation of right leg above knee the loss of earning awarded for 6 months by the Tribunal can be maintained. Re-fixing the amount, compensation would be Rs.3,000x6=Rs.18,000/-. Deducting the amount already awarded by the Tribunal, balance would be Rs.3,000/- (Rs.18,00015,000). MACA NO.1858 OF 2012 12 20. According to the learned counsel, claimant had undergone inpatient treatment in KMC Hospital, Mangalore, on various occasions, but towards transportation charges only Rs.10,000/- has been awarded. So, in view of the facts and circumstances, amount of Rs.15,000/- claimed by the claimant towards transportation charges is allowable. Deducting the amount already awarded, balance wold be Rs.5,000/- (Rs.15,000-10,000). 21. According to the learned counsel for the claimant, the claimant had undergone 89 days inpatient treatment but only Rs.5,000/- has been awarded by the Tribunal towards bystander expense. The accident was in the year 2007, hence Rs.250/- per day can be taken as bystander expense. Hence, towards bystander expenses, claimant is entitled to get Rs.22,250/- (Rs.250 x 89). Deducting the amount already awarded the balance would be Rs.17,250/- (Rs.22,250-5,000). 22. It has come out that she had undergone 89 days inpatient treatment and also undergone various procedures of treatment MACA NO.1858 OF 2012 13 including amputation of right leg above knee. The Tribunal awarded only Rs.25,000/- towards pain and suffering, so an amount of Rs.15,000/- further awarded towards pain and suffering. 23. The claimant was 35 years old at the time of accident. 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'. Re-fixing the amount towards permanent disability, the claimant would be entitled to get Rs.4,200 x 12 x 16 x 85/100=Rs.6,85,440/-. Deducting the amount already awarded, balance would be Rs.4,15,440/- (Rs.6,85,440 - 2,70,000). Hence, the claimant is entitled to get enhanced compensation of Rs.9,22,359.79/- (Rs.3,000 + 5,000 + 17,250 + 15,000 + 4,15,440+ 4,66,669.79) rounded to Rs.9,22,400/-. 24. It is also made clear that the claimant is entitled to get MACA NO.1858 OF 2012 14 interest as per Ext.A12 series medical bills only from the date of this appellate judgment, since, all those bills were produced only on 07.4.2022. Hence, the amount of medical bills ie. Rs.4,66,669.79 rounded to Rs.4,66,670/- will carry interest @ 6% per annum from 17.6.2022 and the balance enhanced compensation of Rs.4,55,730/will carry interest from the date of petition. 25. In the result, appeal allowed by enhancing compensation to an amount of **Rs.9,22,400/(Rupees nine lakhs twenty two thousand four hundred only)** . The 3rd respondent/insurer shall satisfy 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, deducting the amount due towards balance court fee from the claimant. 26. The disbursement of enhanced compensation to appellant/claimant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum MACA NO.1858 OF 2012 15 No.D1-62475/2016 dated 07.11.2019. 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 Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment Sd/- **M.R.ANITHA JUDGE** SMF