Chandran v. Renju John @ Renju S/O Thomas John; Saju Joseph; United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943** ## **MACA NO. 875 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 725/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **KOTTAYAM** ## **APPELLANT/PETITIONER:** ## **CHANDRAN** **S/O.CHELLAPPAN, PALLITHEKKELAYA KANJIRAMATTATHIL HOUSE, PARAMPUZHA P.O.,VIJAYAPURAM VILLAGE, KOTAYAM TALUK.** **BY ADV SRI.P.M.NATESAN** ## **RESPONDENTS/RESPONDENTS:** - **1 RENJU JOHN @ RENJU S/O.THOMAS JOHN, EDATHARAYIL HOUSE, NEAR ST.PAULS CHURCH, PULICKAL BHAGOM AND PULICKAL KAVALA P.O., VAZHOOR VILLAGE, KOTTAYAM, PIN - 686 504.** - **2 SAJU JOSEPH S/O.N.N.JOSEPH, ULAKAMTHARA JANATHA ROAD - 35, PALARIVATTOM P.O., ERNAKULAM PIN 682 025.** - **3 THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, KOTTAYAM, PIN 686 001.** - **BY ADV SRI.T.V.AJAYAKUMAR** ## **OTHER PRESENT:** ## **T.V AJAYAKUMAR-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** ## **25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.875/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V.)No.725/2009 on the file of Motor Accidents Claims Tribunal, Kottayam. Claim petition was filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) for a total compensation of Rs.7,39,000/-, which was limited to Rs.5,00,000/- for the injuries sustained by the claimant in a motor accident occurred on 23.11.2008 at 3.pm. 2. It is alleged that on the date of accident while the claimant was travelling on pillion on motorcycle bearing registration No.KL-5Y-2230 through K.K. Road and reached in front of Holy Family Shopping Complex at Kanjikuzhy, a Tata Sumo bearing Reg.No.KL-7T-5229 hit the motorcycle, resulting in grievous injuries to the claimant. Immediately he was taken to Medical College Hospital, Kottayam, where he had undergone inpatient treatment for 46 days. It is alleged that the accident happened due to the rash and negligent driving of the first respondent, driver of the Tata Sumo. Second MACA No.875/2013 3 respondent is the owner of the offending vehicle and third respondent is the insurer. 3. Before the Tribunal, respondents 1 and 2 remained exparte. Third respondent insurer filed written statement disputing the age, occupation and monthly income of the claimant. Accident and injuries alleged to have sustained are also denied. The policy coverage with respect to the offending vehicle is admitted. 4. Exts.A1 to A10 and Ext.X1 were marked from the side of the claimant. There was no oral evidence from either side. 5. On evaluating the pleadings as well as other materials produced from the side of the claimant Tribunal found that the accident happened due to the rash and negligent driving of the first respondent. Second respondent, being the owner of the offending vehicle, held vicariously liable. The third respondent insurer was liable to make good the loss sustained by the second respondent as per the MACA No.875/2013 4 contract of insurance. Total compensation of Rs.2,54,847/with interest at the rate of 7.5% per annum from the date of petition till realisation was awarded. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal the appellant/claimant (hereinafter be referred as the claimant) came up in appeal for the various grounds stated in the memorandum of appeal. 7. Third respondent/insurer appeared through Sri.T.V. Ajayakumar, learned Standing Counsel and admitted the policy coverage with respect to the offending vehicle. Hence notice on the first respondent was dispensed with at the risk of the claimant. Service is complete on the 2[nd] respondent. Counsel for the claimant as well as the Standing Counsel for insurer were heard. Lower court records were called for and perused. 8. The only challenge in this appeal is the quantum of compensation awarded by the Tribunal. According to the learned counsel for the claimant, the claimant was a woodcutter and the monthly income claimed was Rs.7,000/. MACA No.875/2013 5 But the Tribunal notionally fixed the income as Rs.4,500/-, which according to the claimant is very low. He would also contend that though the Medical Board issued Ext.X1 disability certificate assessing disability at 26.8%, the Tribunal adopted only 15% permanent disability, which also is illegal and hence he seeks interference in the aspect of fixation of monthly income as well as the disability aspect. 9. Learned Standing Counsel for the insurer on the other hand would contend that Ext.X1 disability certificate does not state that it is a permanent whole body disability and hence the Tribunal rightly adopted '15' as the percentage of permanent disability. He would also contend that no document is produced and no evidence has been adduced to prove the actual monthly income and Rs.4,500/- fixed notionally by the Tribunal is just and proper. 10. In Ramachandrappa v. The 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 MACA No.875/2013 6 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. 11. In Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], taking note of the earlier decision in Ramachandrappa's case, the Apex Court reckoned the monthly income of a vegetable vendor, who met MACA No.875/2013 7 with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised 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. 12. In this case accident was in the year 2008. Claimant was 51 years at the time of accident and he is claimed to be a woodcutter. His monthly income claimed is Rs.7,000/-. But no evidence as such adduced to prove the actual income. So in view of the settled position of law his monthly income can notionally be fixed as Rs.6,500/- per month. 13. In the present case, the claimant produced Exts.A5 O.P. Ticket, A6 copy of discharge certificate, A9 copy of wound certificate, A10 treatment card to prove the injuries and the MACA No.875/2013 8 treatment undergone by him. The Tribunal noted that the following injuries have been sustained to the claimant: 1. Fracture (Right) to femur. 2. Right fronto temporal and right parietal intraventricular Haemorrhage 3. Fracture zygoma (right) 4. Fracture mandible (right) 5. Near total amputation of right middle finger at level of P2 and tip of right ring finger. 6. Fracture right knee open . 7. Fracture ribs right side 8. Brain subdural hyyrome 9. Traches sephageal festula 10. Fracture zymomatic arch (right) 11. Fracture mandible sprephysis 14. Ext.A10 series of discharge cards issued from the Medical College Hospital, Kottayam also give a detailed description of the course undergone by the claimant in the hospital. It would reveal that he had undergone surgeries and also has been in ventilator for certain period. Ext.X1 is the disability certificate issued by the Medical Board certifying 26.8% disability. But the Tribunal taken the disability at 15% for computation of the compensation towards future loss of MACA No.875/2013 9 earning power. 15. The Award passed by the Tribunal would reveal that on 18.09.2012 i.e after almost four years after the incident the claimant was present before the Tribunal with the help of a bystander. The Tribunal also noted that he could not walk as a result of the injuries and could not do any manual work. However, the Tribunal adopted the disability at 15%. So in view of the nature of the injuries and the period of treatment undergone by him as well as the physical appearance and the disabilities and the inconvenience noted by the Tribunal, I do not find any justification in reducing the disability as 15% than that is fixed by the Medical Board. So I find it just and reasonable to adopt 26.8% as the permanent whole body disability of the claimant. 16. Towards loss of earning, the Tribunal awarded Rs.54,000/-, by calculating the loss of income for one year. So under that head no further enhancement is seems necessary. Towards extra nourishment, though Rs.5,000/- was claimed, only Rs.3,000/- was awarded. In view of the prolonged 10 treatment and serious nature of injuries sustained by the claimant, Rs.5,000/- as claimed, can be awarded towards extra nourishment. Deducting the amount already awarded, the claimant would get Rs.2,000/- [5,000-3,000] under the head of extra nourishment. Towards bystander expenses, Tribunal already awarded Rs.14,200/-, which seems to be reasonable and no interference is called for on that head. Towards medical expenses, though the learned counsel would contend that in view of the prolonged treatment undergone by the claimant Rs.15,047/- claimed ought to have been awarded, the claimant has no case that any medical bills to substantiate that claim has been produced. Treatment was also at Medical College Hospital, Kottayam. Hence without substantiating any additional expenses than awarded by the Tribunal towards medical expenses no further amount can be awarded towards medical expenses. Towards pain and suffering, the Tribunal awarded Rs.30,000/-. In view of the series of fractures sustained by the claimant including the femur, skull and mandible etc, I am of the view that an amount of Rs.50,000/- MACA No.875/2013 11 can be awarded towards pain and suffering. Deducting the amount already awarded, the balance would be Rs.20,000/[50,000-30,000]. 17. Towards permanent disability, as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] followed by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the proper multiplier would be '11'. Hence towards permanent disability claimant is entitled to get Rs.2,29,944/- [6,500x12x11x26.8/100]. Deducting the amount already awarded, the balance would be Rs.1,40,844/- [2,29,944-89,100]. 18. In the result, the claimant is allowed to realise enhanced compensation of Rs.1,62,844/- rounded to Rs.1,62,850/- (Rupees one lakh sixty two thousand eight hundred and fifty only) [2,000+20,000+1,40,844], which will carry interest at the rate of 7.5% per annum from the date of petition till realisation (excluding the period of 79 days delay caused in filing the appeal). Third respondent-insurer is directed to pay the additional compensation granted in this MACA No.875/2013 12 appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability of the appellant/claimant towards balance Court Fee. 19. The disbursement of additional compensation to appellant 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 No.D1-62475/2016 dated 07.11.2019. 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 certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA** **JUDGE** **shg/**