George M.T. v. Jamal S/o Muhammed and New India Assurance Co. Ltd., MACA No. 2653 of 2012 (High Court of Kerala, Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** ## **MACA NO. 2653 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1189/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** **GEORGE M.T. S/O.THOMAS, AGED 60 YEARS, MECHAMALIL HOUSE,METHALA.P.O,ODACKALY, (VIA), KURUPPANPPADY. BY ADVS. SRI.SOORAJ T.ELENJICKAL SRI.K.NIRMALAN** ## **RESPONDENTS/RESPONDENTS:** **1 JAMAL S/O.MUHAMMED,KARIMBANACKAL HOUSE, THOTTAPPADAM,ALLAPRA,PERUMBAVOOR.P.O,PIN-683542. 2 NEW INDIA ASSURANCE CO.LTD PERUMBAVOOR-683542.** ## **OTHER PRESENT:** **SRI.LAL K.JOSEPH,R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **05.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2653/2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V)No.1189/2007 on the file of Motor Accidents Claims Tribunal, Muvattupuzha (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming total compensation of Rs.2,68,000/-, for the injuries sustained by the claimant in a motor accident occurred on 01.08.2007. 2. It is alleged that while the appellant/claimant was walking through Kothamangalam – Perumbavoor public road and reached at Nellikuzhi Canal Bridge, motorcycle bearing Reg.No.KL-40-733 ridden by the first respondent hit him, resulting in serious injuries to the appellant. The accident happened due to the rash and negligent driving of the motorcycle by the first respondent, owner cum rider. Second respondent is the insurer of the vehicle. MACA No.2653/2012 3 3. Before the Tribunal, first respondent filed written statement contending that the accident happened due to the negligence of the appellant/claimant and the claim under various heads are also contended to be excessive and exorbitant. 4. Second respondent, insurer, filed written statement admitting the policy coverage with respect to the offending vehicle. 5. PW1 examined and Exts.A1 to A10 marked from the side of the appellant/claimant. There was no evidence from the side of the respondents. 6. Tribunal on evaluating the evidence and the facts and circumstances, found that the accident happened due to the rash and negligent driving of the motorcycle by the first respondent and awarded a total compensation of Rs.1,43,250/which was allowed to realise with interest @ 8% per annum till the date of petition. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the MACA No.2653/2012 4 appellant/claimant is before this Court in appeal for various grounds stated in the memorandum of appeal. 8. Notice as against first respondent is dispensed with. Adv. Sri.Lal K. Joseph appeared on behalf of the second respondent, insurer. 9. Heard the learned counsel for the appellant as well as the learned counsel for the second respondent, insurer. Lower court records were called for and perused. 10. According to the learned counsel for the appellant/claimant (hereinafter be referred as the claimant) he was a contractor and claimed a monthly income of Rs.8,000/-. But Tribunal notionally fixed the income as Rs.3,500/-, which according to him is very low. He would also contend that the claimant sustained very serious injuries and though PW1, the doctor, issued a disability certificate assessing 13% permanent whole body disability, the Tribunal taken only 10% as the permanent disability. The compensation awarded under the heads; pain and suffering, loss of amenities etc. are also challenged by him and further contended that no amount was MACA No.2653/2012 5 awarded towards bystander expenses. Hence he seeks for enchantment of compensation on all heads. 11. 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 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 MACA No.2653/2012 6 life etc. 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 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. 12. 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). 13. 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 MACA No.2653/2012 7 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, 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. 14. Claimant produced Ext.A6, wound certificate issued from the Medical Trust Hospital, Ernakulam which would show his admission and treatment from 01.08.2007 to 16.08.2007. He had sustained lacerated wound on the left leg, left black eye, multiple abrasion on the face, left shoulder and MACA No.2653/2012 8 extremities and fracture of left zygomatic maxillary complex. X-ray showed fracture of left tibia and fracture of 4[th] , 7[th] and 8[th] ribs left side. Ext.A7 discharge summary issued from the Medical Trust Hospital dated 17.08.2007 would prove his admission and treatment from 01.08.2007 to 16.08.2007 and the diagnosis is Type I open fracture left tibia at D/3[rd] -M/3[rd] junction with contusion (L) shoulder. On left leg he had sustained punctured wound (+) proximal aspect U/3[rd] leg, abnormal mobility (+), deformity (+), ROM can't be assessed due to pain. X-ray chest showed rib fracture left lower rib. X- ray left knee AP/Lat: fracture tibia P/3[rd] – M/3[rd] junction. ZXray left shoulder AP/Lat: NBI, X-ray left elbow AP/lat:NBI. The treatment given is wound debridement with slab application on 02.08.2007. ORIF with 8 hole DCP fracture left tibia on 06.08.2007. CTVS consultation taken in view of blood in sputum. Physiotherapy started. 15. PW1 is the Doctor who issued Ext.A10 disability certificate certifying 13% permanent disability with respect to the whole body as per Mc Bride scale. In the certificate, the MACA No.2653/2012 9 injuries noted: Type I open fracture left tibia, contusion left shoulder. He was treated with wound debridement POP slab, ORIF with DCP and physiotherapy. The findings of the doctor reads as follows: Left knee: flexion possible upto 70-80 degree from 160-170 degree extension. 13% Numbness of left foot. Not able to squat properly. X-ray left leg taken on 20.01.2011 shows fracture tibia united with plate and screw in situ. The percentage of disability with respect to whole body certified as 13%. During cross examination the doctor reiterated that the claimant was not able to squat and movement of knee joint was restricted and there was 60% reduction in the flexion of knee. 16. So in view of the injuries noted and evidence of PW1, Consultant Orthopedic Surgeon, Deputy Director, KHS (Rtd.), 13% permanent whole body disability assessed by him can be accepted. So reduction of permanent disability at 10% MACA No.2653/2012 10 by the Tribunal is also not in consonant with Raj Kumar, referred above, wherein, it has been specifically held that if at all the Tribunal is not satisfied with the medical evidence adduced by the claimant it is the duty of the Tribunal to refer the injured to a Medical Board. Without resorting to that procedure, arbitrarily reducing the disability from 13% to 10% by the Tribunal is not seems to be proper. So permanent disability of the claimant is taken at 13% as evident from the evidence of PW1 and Ext.A10 disability certificate. 17. The claimant is alleged to be a Contractor and claimed Rs.8,000/- per month as his income. But no evidence whatsoever has been adduced before the Tribunal to prove his actual income. 18. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the Hon'ble 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/-. In Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. MACA No.2653/2012 11 [(2014) 2 SCC 735], taking note of the earlier decision in Ramachandrappa's case, the Apex Court taken 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/-. 19. The accident in this case was in the year 2007. In view of the above settled principles of law, in the absence of any convincing evidence proving the actual income of the claimant, his income can notionally be taken as Rs.6,000/- per month. 20. So in view of the injuries sustained, the disability suffered and the period of inpatient treatment undergone by him, the loss of earning for three months taken by the Tribunal can be maintained. So re-fixing the amount towards loss of earning, the claimant is entitled to get Rs.18,000/- [6000x3]. Deducting the amount already awarded, balance would be Rs.7,500/- [18,000-10,500]. 21. Towards transportation charges, extra nourishment and damage to clothing, already an amount of Rs.3,500/- has been awarded. But no amount is awarded by the Tribunal MACA No.2653/2012 12 towards bystander expenses. It has come out in evidence that the claimant had undergone 16 days inpatient treatment. Since the accident was in the year 2007, Rs.200/- can be taken as his bystander expenses per day. So towards bystander expenses, claimant is entitled to get Rs.3,200/ - [200x16]. 22. Towards pain and suffering, Tribunal already awarded Rs.15,000/-. Taking into account the nature of injuries and the period of treatment undergone by the claimant, Rs.20,000/- can be awarded towards pain and suffering. So the balance would be Rs.5,000/- [20,000-15,000]. 23. Re-fixing the amount towards permanent disability, it would come to Rs.1,02,960/- [6000x12x11x13/100]. From that, the amount already awarded by the Tribunal to be deducted. Then the balance would be Rs.69,360/- [1,02,96033,600]. 24. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.85,060/[7,500+3,200+5,000+69,360], which is rounded off to Rs.85,100/- (Rupees eighty five thousand one hundred only), MACA No.2653/2012 13 which will carry interest at the rate of 6% per annum from the date of petition till realisation (excluding the period of 259 days delay caused in filing the appeal). The second respondentinsurer is directed to pay 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 towards balance Court Fee, if any. 25. 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