Chandran v. United India Insurance Co. Ltd. (MACA No. 822 of 2012)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944** **MACA NO. 822 OF 2012** **AGAINST THE AWARD DATED 13.04.2010 IN OPMV 572/2006 OF PRINCIPAL** **MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **CHANDRAN, AGED 38 YEARS, , S/O. RAMAN CHETTIAR, MELLIKKAVU HOUSE, P.O. NELLIKAPARAMBU, KOZHIKODE DISTRICT. BY ADV SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENT/RESPONDENT NO.2:** **UNITED INDIA INSURANCE CO. LTD., VELIMANNA BUILDING, MAIN ROAD, THAMARASSERY, KOZHIKODE - 673 004. BY ADV SMT.S.JAYASREE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 822 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.572/2006 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injury sustained by the appellant/claimant in a motor accident occurred on 10.11.2005, while she was travelling from Molikavu to Karuthaparambu in an autorickshaw bearing Registration No.KL-11/M5615. It is alleged that the accident due to the rash and negligent driving of the driver of the autorickshaw. 1[St] respondent is the registered owner of the offending vehicle and 2[nd] respondent is the insurer. A total compensation of Rs.2,50,000/- has been claimed. 2. Before the Tribunal, 1[st] respondent filed written statement admitting the ownership and disputing the negligence alleged. 2[nd] respondent filed written statement admitting the insurance coverage with respect to the offending vehicle and denying the negligence on the part of the driver of the autorickshaw. 3. Exts. A1 to A6 and C1 marked from the side of the appellant/claimant. There is no oral evidence from either side. On evaluating the pleadings as well as materials produced, Tribunal found M.A.C.A No. 822 of 2012 **3** that the accident happened due to the rash and negligent driving of the driver of the autorickshaw and hence, 1st respondent is held liable for the act of the driver and 2[nd] respondent is held liable to indemnify the 1st respondent insured. A total compensation of Rs.1,03,940/- was awarded by the Tribunal. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant (hereinafter be referred as claimant) approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Adv. Jayasree, appeared on behalf of the respondent/2[nd] respondent insurer. Lower court records were called for and perused. 5. Heard the learned counsel for the claimant as well as the learned counsel for the 2[nd] respondent/insurer. 6. According to the learned counsel for the claimant, claimant was a Mason and his income was Rs.4,500/- per month. But Tribunal was taken his income as Rs.2,500/- per month. That is very low. It is further contended that amount of compensation awarded under the other heads are also very low. Hence he seeks for enhancement of compensation on all other heads. 7. Adv. Jayasree, the learned counsel for the M.A.C.A No. 822 of 2012 **4** respondent/insurer 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. 8. Monthly income claimed by the claimant is Rs.4,500/-. He is alleged to be a Mason and the accident was on 10.11.2005. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the Apex Court fixed the monthly income of a coolie, who met with a motor accident in the year 2004, notionally as Rs.4,500/-. The accident in this case was in the year 2005. Hence, the income Rs.4,500/- claimed can very well be accepted. Accordingly, income of the claimant is taken as **Rs.4,500/-** per month. ## 9. In _**Raj kumar v. Ajay Kumar and Another**_ **(2011 (1) 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 M.A.C.A No. 822 of 2012 **5** be awarded only under the heads ie, expenses relating to 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. 10. 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). 11. 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. 12. It is contended that due to the accident and consequent M.A.C.A No. 822 of 2012 **6** injuries, he was prevented from doing his work for six months. But Tribunal awarded compensation for 1 and ½ month only towards loss of earning. Claimant produced Exts.A3 discharge card which would show that he had undergone inpatient treatment from 10.11.2005 to 23.11.2005 and undergone surgery on 11.11.2005 at Medical College Hospital, Calicut. The discharge card noted the following injuries: Type II open # olecranon (l), #(l) patella, closed# 4[th] meta tarsal. After surgery he was directed to appear for review at Orthopaedics after five weeks. Ext.A5 is the O.P ticket issued from Department of Physiotherapy and Rehabilation of St. Josephs Hospital where he had undergone physiotherapy treatment. Ext.C1 is the disability certificate issued by the Medical Board certifying 17% permanent disability. In view of the serious nature of injuries sustained by the claimant and the procedure undergone by him, 4 months loss of earning can be awarded. Hence towards loss of earning, compensation would be Rs.4,500x4=18,000/-. Deducting the amount already granted, the balance would be **Rs.14,250/-** (18,000-3,750). 13. Towards the by stander expenses, Tribunal awarded only Rs.100/- per day. Since the accident was in the year 2005, Rs.200/- per day can be awarded towards bystander expenses. Hence under the M.A.C.A No. 822 of 2012 **7** head of by stander expenses, claimant is entitled to get 200x13=2,600. After deducting the amount already awarded, the balance would be **Rs.1,300/-** (2,600-1,300). Towards extra nourishment, Tribunal awarded Rs.300/-. In view of injuries as well as treatment undergone by him, **Rs.500/-** more can be awarded towards extra nourishment. 14. Next is with respect to the compensation awarded for permanent disability. The claimant was aged 32 years at the time of accident. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '16'. Disability certificate has been issued by the Medical Board on evaluating the injuries sustained by him. Taking into account the fact that he was a Mason, 17% disability is taken as whole body. Hence towards permanent disability, the claimant is entitled to get 4,500x12x16x17/100=1,46,880. Deducting the amount already awarded, the balance would be **Rs.65,280/-** (1,46,880-81600). 15. it is further contended that claimant sustained serious injuries and undergone surgery, Rs.10,000/- awarded towards pain and suffering is very low. Taking into account the fact that he sustained type II open fracture olecranon left, patella, 4[th] matatarsal, proximal phalanx, M.A.C.A No. 822 of 2012 **8** multiple abrasion on the left hand and left foot and undergone surgery, **Rs.10,000/-** can be further awarded towards pain and suffering. No amount was awarded towards loss of amenities. As per **Raj Kumar (supra),** in view of permanent disability and taking into the fact that he was a Mason, an amount of **Rs.15,000/-** can be awarded towards loss of amenities. Hence, the claimant is entitled to get enhanced compensation of Rs.1,06,330/(14,250+1,300+500+65,280 +10,000+15,000). 16. In the result, claimant is allowed to realize enhanced compensation of Rs.1,06,330/- rounded to **Rs.1,06,350/-** (One lakh six thousand three hundred and fifty only) in this appeal, which will carry interest at the rate of 6% per annum from the date of petition till realization. Respondent/insurer 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 certified copy of this judgment. 17. The appeal has been filed with a petition to condone delay of 669 days. While condoning the delay by order dated 28.05.2012 in CMA.No.1029/2012, it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim M.A.C.A No. 822 of 2012 **9** interest for the above said period. Hence, interest for the period of 669 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 certified copy of this judgment. SD/- **M.R.ANITHA, JUDGE** rps/