E.K. Jomon v Subash S/o Subramanian, New India Assurance Company Ltd, and Dasan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 4[TH] DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943** **MACA NO. 759 OF 2013** **AGAINST THE JUDGMENT IN OPMV 97/2008 OF MOTOR ACCIDENTS CLAIMS** **TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **E.K.JOMON S/O.KOCHAYAPPAN, THOTTATHIL HOUSE @ EDATHATTU VEEDU, ERODU VAZHI DESOM, CHENGALOORE VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV SRI.P.V.BABY** ## **RESPONDENTS/RESPONDENTS:** **1 SUBASH S/O.SUBRAMANIAN, NELLIPARAMBIL HOUSE, CHEBUCHIRA DESOM, MATTATHOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 680 692. 2 NEW INDIA ASSURANCE COMPANY LTD MAIN ROAD, IRINJALAKUDA 680 121. 3 DASAN POLIPARA HOUSE, MUTTITHADY P.O 680 317. BY ADVS. SRI.M.J.POLLY SRI.A.C.DEVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 759 of 2013 **2** ## **M.R.ANITHA, J.** **----------------------------------------M.A.C.A No. 759 of 2013 ----------------------------------------** Dated this the 4[th] day of February, 2022 ## **JUDGMENT** The appeal has been filed against the award in O.P.M.V No.97/2008 on the file of Motor Accidents Claims Tribunal, Ottappalam (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act). The appellant claimed a total compensation of Rs.8,50,500/- which was limited to 8,00,000/-. 2. It is alleged that on 25.11.2007 at about 11.15 a.m, while the appellant/claimant was riding a motor cycle bearing Reg.No.KL-45-9546 through Chengallu-Cottage public road, an autorickshaw bearing Reg.No.KL8D 2252 driven by the 1[st] respondent came from the opposite direction in a rash and negligent manner and hit the appellant/claimant (herein after be referred as claimant) whereby the claimant sustained M.A.C.A No. 759 of 2013 **3** serious injuries. It is alleged that the accident happened only due to the rash and negligent driving of the 1[st] respondent. 3. Before the Tribunal, 1[st] respondent was deleted from party array. 2[nd ] respondent remained ex parte and the 3[rd] respondent/insurer filed written statement. Additional 4[th] respondent, the owner of the autorickshaw has been subsequently impleaded and remained ex parte. The 3[rd] respondent admitted the insurance coverage with respect to the offending vehicle and disputed the age, income and occupation of the appellant/claimant and also contended that amount of compensation claimed under various heads are excessive. It is further contended that the claimant was riding the motor cycle without helmet. 2[nd] respondent did not have valid driving license and petition filed under Section 170 of the Act has been allowed. 4. PW1 and PW2 were examined. Exts. A1 to A9 were marked from the side of the claimant. After evaluation of the pleadings and evidence, the Tribunal found that the 1[st] respondent, the driver of the autorickshaw was liable for the M.A.C.A No. 759 of 2013 **4** accident. The 3[rd] respondent insurer is directed to pay the compensation as per the contract of insurance. 5. The Tribunal awarded a total compensation of Rs.4,16,335/-, together with interest at the rate of 7.5% per annum. Aggrieved by the quantum of compensation awarded by the Tribunal, the claimant approaches this Court in appeal. Though notice was duly served to respondents 1 and 3, there is no appearance on behalf of them. 2[nd] respondent insurer appeared through Adv. A.C.Devy, the learned Standing Counsel. Lower court records were called for. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the 2[nd] respondent. 6. According to the learned counsel for the claimant/appellant (hereinafter be referred as the claimant), the claimant was a Carpenter and his monthly income claimed was Rs.7,500/- per month. He was examined and adduced evidence to prove his income as Rs.7,500/-. But the Tribunal fixed the monthly income notionally as Rs.3,000/-. That is very low. It is contended that though the Medical Board has issued M.A.C.A No. 759 of 2013 **5** Ext.X1 certificate and one of the members of the board examined as PW1, the Tribunal arbitrarily fixed the disability only at 38.8%. It is further contended that the amount of compensation awarded under various heads are very low. 7. The learned counsel for the 2[nd] respondent on the other hand contended that there is no clear evidence to prove the occupation of the claimant as Carpenter as well as to prove his income as Rs.7,500/-. Hence, the Tribunal rightly fixed his income notionally as Rs.3,000/- and no interference is called for in that regard. It is also contended that percentage of disability accepted by the Tribunal at 38.8% is as per the Ext.X1 certificate issued by the Medical Board, and hence no interference is called for in that regard. So according to him, just and reasonable compensation has already been awarded by the Tribunal and no interference is called for at the instance of this Court. 8. The claimant is examined as PW2 and he has deposed that he is a Carpenter. Claimant filed chief affidavit and Exts.A1 to A10 were marked in which he categorically M.A.C.A No. 759 of 2013 **6** stated that his occupation is Carpenter and the challenge was with regard to the document to prove his occupation as Carpenter. In this context, it is notable that Ext.X1 certificate of the Medical Board also state his occupation as Carpenter. In view of the oral evidence adduced by the claimant and certificate issued by the Medical Board, the occupation of the claimant alleged as Carpenter cannot be said as not proved. 9. 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/-. 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 M.A.C.A No. 759 of 2013 **7** 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 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 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 M.A.C.A No. 759 of 2013 **8** prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 12. The learned counsel for the 2[nd] respondent would contend that his monthly income has to be fixed as Rs.6,000/per month. It has been found clearly that claimant could establish that he is a carpenter. In the circumstances, I find it just and proper to fix monthly income of the claimant as Rs.6,500/-13.In _**Raj kumar v. Ajay Kumar nd 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 be awarded only under the heads ie, expenses relating to treatment, hospitalization, medicine, M.A.C.A No. 759 of 2013 **9** 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 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). 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 M.A.C.A No. 759 of 2013 **10** claimant. 16. The claimant produced Exts.A4, A5 and A6 discharge certificates which would prove that the claimant had undergone impatient treatment for 24 days. The claimant suffered the following injuries:- 1) RE traumatic lid rupture 2) Traumatic optic neuropathy 3) Re corneal exposure 4) Right orbital, zygomatic fracture with temporal base EDH. Right eye traumatic lip rupture. The defect was 15x5 mm from medial one third to lateral two third. He had traumatic optic neuropathy. CT scan report of Jubilee Mission Medical College & Research Institute, Thrissur dated 25.11.2007 shows 'Bone window' and 'Impression' state as follows: ## _“Bone Window_ - _Comminuted fracture involving medial and lateral wall of right orbit, walls of right maxillary sinus, greater wing of sphenoid forming floor of middle cranial fossa, undisplaced fracture of right nasal bone, displaced fracture of left nasal bone, right zygomatic arch._ - _Bleed noted into right maxillary sinus, nasal cavity, ethmoid sinus._ - _Right orbit shows subperiosteal hemmorrhage involving lateral orbital wall, pneumo orbit, retro bulbar stranding, thickened_ M.A.C.A No. 759 of 2013 **11** _optic nerve and posterior aspect of sclera, entrapment of medial rectus in medical wall, proptosis of eye ball, periorbital edema and surgical emphysema. Contour of right eye ball appears intact._ ## _Impression_ - _Diffuse cerebral edema._ - _Extra dural hematoma right temporal pole_ - _Fracture of above mentioned sites._ - _Contusion of right orbit, subperiosteal hematoma lateral wall and entrapment of medial rectus.”_ Tribunal awarded Rs.1,72,547/- towards medical and miscellaneous. The Medical Board also certified the permanent disability at 38.8% and loss of earning capacity at 72%. One of the Doctors in Medical Board was examined as PW1 and proved Ext.X1 certificate and deposed that disability certified by the Medical Board including the loss of earnings capacity as such has to be accepted. So there is no reason or justification for the Tribunal in taking the disability at 38.8%. Being a Carpenter, loss of eye sight of right eye would considerably affect his work as a Carpenter. For perfection in carpentry, eye sight of the Carpenter is most material. So functional disability certified at 72% by the Medical Board substantiated through M.A.C.A No. 759 of 2013 **12** the evidence of PW1 ought to have been accepted. Hence functional disability at 72% certified by the Medical Board is accepted for computing the future loss of earning power. 17. In view of the permanent disability at 72%, the learned counsel claims enhancement on the ground of future prospects. **Pappu Deo Yadav v. Haresh Kumar** judgment in Civil Appeal No.2567 of 2020 dated 17.09.2020 of three Judge Bench of Apex Court was placed reliance on. In that decision, two questions arose for consideration. (1) Whether in cases of permanent disablement incurred as a result of motor accident, the claimant can seek apart from compensation for future loss of income amounts for future prospects and also (2) the extent of disability. In paragraph No.12 after discussing various case laws, it was held that High Court clearly erred in holding that compensation for loss of future prospects could not be awarded. In addition to loss of future earnings, the appellant is also entitled to compensation for loss of future prospects at the rate of 40% (following Pranay Sethi principle). So award of compensation towards future prospects in injury cases M.A.C.A No. 759 of 2013 **13** where the victim sustained permanent disability has been recognised under law. In this case, the claimant was aged 38 years. So 40% enhancement towards future prospects is also to be awarded for arriving at just compensation. 18. In the above circumstances, under the head of future loss of earning capacity, the appellant is entitled to get 9,100 (6,500 + 2600 (40% of 6,500)) x 12 x 16 x 72/100 = 12,57,984/-. After deducting the amount already awarded i.e. 12,57,984 – 2,23,488, the balance would come to **Rs.10,34,496/-** . 19. In view of the serious nature of injuries sustained by the claimant and the period of treatment undergone by him and the disability, the loss of earnings for 4 months can be reasonably granted. It will come to Rs.6,500 x 4 = **26,000** /-. 20. Towards the by stander expenses, the Tribunal awarded Rs.2,400/-. Claimant had undergone in-patient treatment for 24 days. The accident was occurred in the year 2007. So towards the by stander expenses, the claimant is entitled to get Rs.250/- per day. Hence under the head of by M.A.C.A No. 759 of 2013 **14** stander expenses, claimant is entitled to get 250x24=6,250. After deducting the amount already awarded, the balance would be **Rs.3,850/-.** 21. The learned counsel further contended that no amount was awarded towards loss of amenities since the claimant has lost his eye sight of one eye. I am of the view that an amount of Rs. **15,000/-** can be further granted towards loss of amenities. Towards transportation charges, the Tribunal already awarded Rs.500/-. The discharge certificate produced from the side of the petitioner would prove that he had undergone in-patient treatment for 24 days. Therefore, amount towards the transportation expenses is refixed as Rs.1,500/-. Deducting the amount already granted, the balance would be Rs. **1,000/-** . An amount of Rs. **500/-** can also be granted towards damages to clothing. Hence, the claimant is entitled to get an enhanced compensation of Rs.10,80,596/-(10,34,406 + 26,000 +3,850+ 15,000 + 1000 + 500). 22. In the result, claimant is allowed to realize M.A.C.A No. 759 of 2013 **15** enhanced compensation of Rs. **10,80,596/-** in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.2 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. The disbursement of enhanced 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 a certified copy of this judgment. **Sd/-** **M.R.ANITHA, JUDGE** rps/jsr