GIRIJA v. THE MANAGER, NEW INDIA INSURANCE CO.LTD.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE M.R.ANITHA`** ``` FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943 ``` ## **`MACA NO. 2619 OF 2014`** ``` AGAINST THE AWARD IN OPMV 496/2012 DATED 29.04.2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA ``` ## **`APPELLANT/PETITIONER:`** ``` GIRIJA W/O. BABU, KIZHAKKEDATHU @ KOCHUPURACKAL HOUSE, PULIYANNOOR KARA, PULIYANNOOR VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.MANU TOM ``` ## **`RESPONDENT/RESPONDENT:`** ``` THE MANAGER, NEW INDIA INSURANCE CO.LTD. MUNICIPAL COMPLEX BUILDINGS, PALA, KOTTAYAM DISTRICT - 686 575. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI ``` ``` K.S SANTHI-RESPONDENT ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2619 OF 2014 ``` ``` -2- ``` ## JUDGMENT Appellant is the claimant in O.P.(M.V.)No.496/2012 on the file of the Motor Accidents Claims Tribunal, Pala. The claim petition was filed under Section 166 of the Motor Vehicles Act, out of the injury sustained to the claimant in an accident occurred on 15.03.2012. 2. It is alleged that on 15.03.2012 at about 11.15 hours while the appellant/claimant (hereinafter be referred as the claimant) was crossing the road through the zebra line, the offending vehicle bearing registration No. KL-35/B-8229, motor cycle ridden by the 1[st] respondent came in a rash and negligent manner and knocked down the claimant resulting her to fell down thereby she sustained serious injuries. It is alleged that the accident happened due to the rash and negligent riding of the motor cycle by the 1[st] respondent. 3. The 2[nd] respondent is the owner of the vehicle and the 3[rd] respondent is the insurer. 4. Before the Tribunal, first and third respondents entered appearance and filed written statement, admitting the policy coverage with respect to the motor cycle bearing No.KL-35/B-8229. It ``` MACA NO. 2619 OF 2014 ``` ``` -3- ``` is also contended that the compensation claimed under various heads are excessive. The negligence alleged on the part of 1[st] respondent is also denied. There was no oral evidence adduced from either side. 5. Though the claimant made a claim of Rs.4,60,000/-, it was limited to 2 lakh. Exts.A1 to A10 series were marked on the side of the claimant. Thereafter, on evaluating the pleadings as well as the documents produced from the side of the claimant the Tribunal passed an award of Rs.72,140/-. Aggrieved by the award passed by the Tribunal, the claimant came up in appeal for the various ground stated in the memorandum of appeal. 6. The main contention of the learned counsel for the claimant is that, the claimant was a rubber tapper. Exts.A9 and A10 employment certificates were produced and marked without objection, which would show her monthly income as Rs.15,000/-. But the Tribunal fixed the notional income at Rs.7,000/- per month, which according to the claimant, is very low. It is also contended that, though Ext.X1 disability certificate issued by the medical board has been produced and marked certifying 4% permanent disability, the Tribunal adopted ``` MACA NO. 2619 OF 2014 ``` ``` -4- ``` disability at only 2%, which according to the learned counsel, is illegal. Further, he challenges the loss of earnings for three months granted by the Tribunal and the amounts awarded for pain and sufferings is also said to be very low. He would also contend that no amounts were awarded towards loss of amenities, damage to clothing etc. 7. Learned counsel for the respondent insurer on the other hand would contend that, very just and reasonable compensation has already been awarded by the Tribunal and no enhancement is required in this appeal. 8. Though a monthly income of Rs.15,000/- is claimed and Exts. A9 and A10 employment certificates were produced, unfortunately, the employer who issued the certificates were not examined and hence the certificates have not been proved. Mere marking of a document will not amount to proof. So the Tribunal seems to have fixed the monthly income notionally. 9. In **Ramachandrappa v. Manager, Royal Sundaram** **Alliance Insurance Company Limited [(2011) 13 SCC 236]** the ``` MACA NO. 2619 OF 2014 ``` ``` -5- ``` 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 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. 10. 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 ``` MACA NO. 2619 OF 2014 ``` ``` -6- ``` 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 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. 11. Applying the principles laid down in the above decisions, I am of the considered view that the income of the claimant can notionally be fixed as Rs.8,500/- per month. 12. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** 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 ``` MACA NO. 2619 OF 2014 ``` ``` -7- ``` 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 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. 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 enumerated. 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 ``` MACA NO. 2619 OF 2014 ``` ``` -8- ``` 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 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. 13. In the present case, it has come out that the claimant had sustained the following injuries:- Pain, swelling, lacerated wound on the occipital region with bleeding,lacerated wound 5 x ½ cm, pain ``` MACA NO. 2619 OF 2014 ``` ``` -9- ``` and swelling on the lumbar region and contusion right side of pelvis. Ext.A7 is the discharge certificate which shows that the petitioner had pain and tenderness over the lumbar region and right pelvic region, right thigh upper part, pain occipital region of the scalp, lacerated wound 5 x ½ cm on the occipital region of scalp with bleeding from the right pelvic region. X-ray showed fracture of the superior pelvic ramus (right). She was admitted to the hospital on 15.03.2012 and discharged on 24.03.2012. 14. Taking into account the nature of injuries sustained by the claimant as well as the disability certificate issued by the medical board, I am of the view that the loss of income calculated for three months by the Tribunal is very low and it can be refixed for five months at the rate of Rs.8,500/- per month. 15. Towards loss of earning capacity, the Tribunal awarded Rs.21,840/- by taking the disability at 2% instead of 4%. Learned counsel for the claimant vehemently argued that the Tribunal went wrong in refusing to accept Ext.X1 certificate issued by the medical board. From Ext.X1 certificate, it can be seen that 4% whole body ``` MACA NO. 2619 OF 2014 ``` ``` -10- ``` disability has been certified by the medical board. As has been held in Rajkumar, if at all the Tribunal has any doubt regarding the acceptability of the percentage of disability shown in Ext.X1, the Tribunal ought to have examined any of the members of the Medical Board. Without doing that, there is no justification on the part of the Tribunal in reducing the percentage of disability to 2%. So, I do not find any reason for not accepting Ext.X1 disability certificate issued by the medical board. Hence, loss of earning capacity of the claimant by accepting Ext.X1 medical certificate can be fixed as 8500 x 12 x 13 x 4/100 = Rs.53,040/-. Deducting the amount already awarded, balance would be 53,040 – 21,840 = Rs.31,200/-. 16. Learned counsel seeks for enhancement of compensation under the head of pain and sufferings. It appears that an amount of Rs.20,000/- has already been awarded under the head pain and sufferings, which appears to be just and reasonable. But no amounts were awarded towards loss of amenities. Taking into account 4% disability as well as the nature of injuries sustained, I am of the view that an amount of Rs.10,000/- can be granted towards loss of ``` MACA NO. 2619 OF 2014 ``` amenities. No amount is seem to have been awarded towards damage to clothing. So the amount of Rs.1,000/- claimed is awarded towards damage to clothing. Towards extra nourishment, an amount of Rs.1,000/- was awarded, to which, an additional amount of Rs.500/is granted. Claimant is further entitled to get by-stander expenses at the rate of Rs.250/- per day, since the accident was of the year 2012, i.e., Rs.250/- x 9 days = Rs.2,250/-. Deducting the amount already awarded, the balance would be Rs.450/- (2,250 – 1,800). 17. In the result, the appellant/claimant will be entitled for - enhanced compensation of Rs.43,150/ (Rupees Forty Three Thousand One Hundred and Fifty only) [ 31200+10 ,000+2,250+5,00] in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition till realisation. Respondent No.3 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 a certified copy of this judgment, after deducting the liability of the appellant/claimant towards Balance Court Fee. 18. The appeal is filed with a petition to condone delay of 25 ``` MACA NO. 2619 OF 2014 ``` ``` -12- ``` days. While condoning the delay by order dated 14.01.2015 in C.M.Appl.No.3017/2014, it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, for the said period of 25 days, interest is excluded. 19. 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. There will be no order as to costs. ``` Sd/- ``` ``` M.R.ANITHA ``` ``` JUDGE ``` uu