Eldho Mathew v. Deepu Mohanan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943** ## **MACA NO. 2467 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1807/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **ERNAKULAM** ## **APPELLANT/PETITIONER:** **ELDHO MATHEW AGED 20 YEARS S/O.V.M.MATHEW, VENGINIKATTU KUDIYIL, PAZHOOR KARA, PIRAVAM. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENTS/RESPONDENTS:** |**1**|**DEEPU MOHANAN**| |---|---| ||**S/O.MOHANAN, OORAYATHU HOUSE, PAZHOOR KARA, PIRAVAM,**| ||**MUVATTUPUZHA.686 664**| |**2**|**THE ORIENTAL INSURANCE CO.LTD.**| ||**T.H.TOWER, FIRST FLOOR, STADIUM ROAD, MARKET P.O.,**| ||**MUVATTUPUZHA.686 673**| |**3**|**BABU.V.JOHN**| ||**S/O.JOHN, VENGINIKATTU KUDIYIL HOUSE, PAZHOOR P.O.,686664.**| |**4**|**MOHINI BIJU**| ||**KUDILIL HOUSE, CHETHICODE.P.O.,682315, KANJIRAMATTOM.**| |**5**|**THE UNITED INDIA INSURANCE CO.LIMITED**| ||**2ND FLOOR, MANICKANAM PARAMBIL BUILDINGS, LAYAM ROAD,**| ||**TRIPUNITHURA 682 301.**| ||**BY ADVS.**| ||**SMT.S.JAYASREE**| ||**SRI.VPK.PANICKER**| ## **OTHER PRESENT:** **SRI. V.P.K PANICKER-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **10.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2467/2012 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.1807/2009 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.2,46,000/-, on account of the injury sustained by the appellant/claimant (hereinafter be referred as the claimant) in a motor accident. 2. It is alleged that on 27.03.2009 at about 4.30 p.m while he was riding on pillion of a scooter bearing Reg.No.KL07 AN 9506 ridden by the 3[rd] respondent and reached at Oorakam, an autorickshaw bearing Reg.No.KL-17 E 9625 driven by the first respondent hit the motorcycle, resulting in grievous injuries to the claimant. Second respondent is the insurer of the offending vehicle. Respondents 4 & 5 are the owner and insurer of the motorcycle. 3. Before the Tribunal, respondents 1, 3 and 4 remained exparte. Respondents 2 & 5 filed separate written MACA No.2467/2012 3 statements. Policy coverage with respect to both the vehicles are admitted. It is contended by the 2[nd] respondent that the accident occurred due to the negligence of the 3[rd] respondent, the rider of the motorcycle and the compensation claimed is excessive and unreasonable. 4. There was no oral evidence on either side. Exts.A1 to A10 were marked from the side of the claimant. 5. The Tribunal on evaluating the pleadings and materials produced from the side of the claimant passed Award for total compensation of Rs.63,600/- with interest at the rate of 8% from the date of petition till realisation. Second respondent, insurer, was held liable to pay the amount. 6. 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. 7. Notice was dispensed with respect to respondents 1, 3 and 4 as per the order dated 30.09.2021. Respondents 2 and 5 entered appearance through Standing Counsel. MACA No.2467/2012 4 8. Heard both sides. 9. According to the learned counsel for the claimant, the claimant was 19 year old 11[th] standard student. He sustained grievous injuries out of the incident. But the amount awarded by the Tribunal under various heads are low and hence she seeks for enhancement on all heads. She would also contend that though medical bills for Rs.61,799.75 were produced the Tribunal awarded only Rs.38,000/- towards medical expenses. She seeks enhancement with respect to that also. 10. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded and hence no interference is called for at the instance of this Court. 11. The first argument is with respect to the medical bills. As rightly pointed out by the learned Standing Counsel the list of bills produced from the side of the claimant would go to show that three bills for Rs.3,000/-, 15,000/- and Rs.10,000/- are advance bills and the Tribunal has not MACA No.2467/2012 5 awarded any amount covered by those bills. But on verifying the bills, item No.24 would show that though in I.P.Bill No.09000211 the amount is shown as Rs.36,359.78, less advance of Rs.28,000/- (3,000+15,000+,10,000 referred above), only Rs.8,359.78 has been collected. So that would indicate that advance has been credited in that bill. The remaining bills in total is for Rs.38,949.64. Tribunal awarded only Rs.38,000/towards medical expenses. So claimant is entitled to get Rs.28,949.64 [28,000+949.64] towards medical expenses. 12. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of MACA No.2467/2012 6 earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. The 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 disability and MACA No.2467/2012 7 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). 14. In paragraph No.5 of the above judgment, 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. 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 MACA No.2467/2012 8 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). 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. 15. In the present case, As per Ext.A2 wound certificate and A10 discharge summary the claimant sustained the following injuries: - (1) Bleeding from the nostril - (2) Comminuted fracture of nose - (3) Contusion, oedema and tenderness of cheek - (4) Pain and tenderness of right thumb - (5) Open fracture nasal bone with nose laceration with fracture both zygomatic complex and fracture (L) side inferior wall of orbit. 16. The claimant had undergone inpatient treatment for - 8 days. No disability has been produced. In the above MACA No.2467/2012 9 circumstances compensation awarded by the Tribunal is refixed as follows: Towards extra nourishment, though an amount of Rs.3,000/- was claimed, only Rs.1,000/- is seen awarded. Claimant was a student of 11[th] standard. Taking into account that fact, compensation towards extra nourishment is enhanced to Rs.3,000/-. Deducting the amount already awarded, the balance would be Rs.2,000/- [3,000-1,000]. The Tribunal awarded Rs.1,600/- towards bystander's expenses. He had undergone inpatient treatment for 8 days. Accident was in the year 2009. So Rs.250/- per day can be taken towards bystander's expenses. Deducting the amount already awarded, - the balance would be Rs.400/ [2,000-1,600]. Towards compensation for pain and sufferings, though a claim of Rs.40,000/- was made, the Tribunal awarded only Rs.20,000/-. Taking into account the fact that he was a student and he had undergone 8 days inpatient treatment and the nature of injuries including fracture nasal bone with nose laceration with fracture both zygomatic complex and fracture (L) side MACA No.2467/2012 10 inferior wall of orbit etc. an amount of Rs.5,000/ - more is awarded towards pain and sufferings. Towards loss of amenities only Rs.2,000/- was awarded. Taking into the nature of injuries as well as the period of treatment undergone and further that the claimant was a student an amount of Rs.10,000/ - more is awarded towards loss of amenities. 17. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.46,349.64, rounded off to Rs.46,350/- (Rupees forty six thousand three hundred and fifty only) [28,949.64+2,000+400+5,000+10,000], which will carry interest at the rate of 7.5 % per annum from the date of petition till realisation. S econd respondent insurer shall satisfy the 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, after deducting the liability of the appellant/claimant towards balance Court Fee, if any. The disbursement of additional compensation to appellant/claimant shall be made taking note of the law on the MACA No.2467/2012 11 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, with copy to the learned Standing Counsel for the insurer, 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/**