Gokulan v. Rema Rasak and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943** **MACA NO. 3043 OF 2009** **AGAINST THE AWARD DATED 17.02.2009 IN OPMV 1719/2004 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **GOKULAN, S/O KRISHNANKUTTY NAIR, KEEZHUMALA HOUSE, VADAMA P.O., THRISSUR DISTRICT. BY ADV SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** |**1**|**REMA RASAK**| |---|---| ||**MANIYAPARAMBIL HOUSE, KAVANADU, MALA,, THRISSUR**| ||**DISTRICT.**| |**2**|**VISWANATHAN @ BASAK**| ||**MANIYAPARAMBIL HOUSE, KAVANADU, MALA, THRISSUR**| ||**DISTRICT.**| |**3**|**THE MANAGER**| ||**ORIENTAL INSURANCE CO. LTD., MANAPPAT BUILDINGS,,**| ||**KODUNGALLUR, THRISSUR DISTRICT.**| ||**BY ADV SRI.TITUS MANI**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 3043 of 2009 **2** ## **JUDGMENT** This appeal has been filed against the award in O.P.M.V No.1719/2004 on the file of Motor Accidents Claims Tribunal, Irinjalakkuda. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant/claimant in a motor accident occurred on 16.08.2004. While he was travelling in the autorickshaw bearing Registration No. KL.10/A 3154, a car bearing Registration No. KER.3663 driven by the 2[nd] respondent came from the opposite side and hit on the autorikshaw, thereby the appellant/claimant sustained serious injuries. Total compensation of Rs3,00,000/- has been claimed. 2. Before the Tribunal, the 1[st] and 2[nd] respondents the owner and driver of the offending vehicle remained ex parte and the 3[rd] respondent insurer filed written statement admitting the insurance coverage with respect to the offending vehicle. Further M.A.C.A No. 3043 of 2009 **3** contended that the accident happened due to the rash and negligent driving of the autorickshaw by its driver. 3. Exts. A1 to A7 were marked from the side of the appellant. Ext.B1 and B2 were marked from the side of the 3[rd] respondent. On evaluation of the documents and pleadings, the Tribunal found that the accident occurred due to the rashness and negligence on the part of the 2[nd] respondent, hence the 3[rd] respondent is held liable to indemnify the 1[st] respondent insured. The Tribunal awarded a total compensation of Rs.60,500/- under various heads together with interest at the rate of 7% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant approaches this Court in appeal. 5. The 3[rd] respondent insurance company appeared through Standing Counsel. Service of notice against respondents 1 and 2 dispensed with at the risk of the appellant. Lower court records were called for and perused. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. M.A.C.A No. 3043 of 2009 **4** 6. The dispute is with regard to the quantum of compensation awarded by the Tribunal under various heads alone. It is contended that the appellant/claimant (hereinafter be referred as claimant) was a worker in Paambu Mekkat Mana and earning Rs.3,000/- as monthly income. But the Tribunal fixed his monthly income as Rs.2,000/- per month, it is very low. It is also contended that though Ext.A7 disability certificate was produced from the side of the claimant, the Tribunal refused to accept the same and did not grant any amount towards disability. It is also contended that the amount awarded under other heads are very low in view of the nature of injuries sustained by the claimant. 7. The learned Standing Counsel for the 3[rd] respondent 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. The accident was occurred in the year 2004. No evidence as such adduced to prove the monthly income of the appellant. 9. In **Ramachandrappa v. Manager, Royal Sundaram** M.A.C.A No. 3043 of 2009 **5** ## **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 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 v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the M.A.C.A No. 3043 of 2009 **6** 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 prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 11. In view of the principles laid down in the above decisions, I am of the view that the income of Rs.3,000/-claimed by the claimant is seems to be just and reasonable and is hereby accepted. 12. Next is with regard to the permanent disability and other heads. The injures sustained by the claimant is lacerated wound over the lateral aspect of the right eye extending to the eye M.A.C.A No. 3043 of 2009 **7** brow 4x1x1 cm., deformity of the right forearm with swelling, punctured wound on the middle of right forearm, lacerated wound over the right leg 6x1x1 cm., just below the knee and open fracture of both bones of the right forearm. Ext.A7 disability certificate would show that he had undergone impatient treatment for 27 days from 17.08.2004 to 13.09.2004. The discharge summery produced from the side of the claimant further shows that he had further admitted on 24.04.2006 for implant removal. So the documents produced from the side of the claimant will prove that he had undergone 28 days impatient treatment. 13. So, evaluating the nature of injuries and the period of treatment undergone by the claimant, six months loss of earnings adopted by the Tribunal is seems to be just and reasonable. Under the head of loss of earnings, the claimant is entitled to get a total compensation of Rs.3,000x6=18,000/-. Deducting the amount already awarded, the balance would be **Rs.6,000/-** (18,00012,000). 14. Towards the bystander expenses, the Tribunal awarded Rs.2,800/-. The accident was occurred in the year 2004. M.A.C.A No. 3043 of 2009 **8** So towards the by stander expenses, the claimant is entitled to get Rs.200/- per day. On that head, claimant would be entitled to get enhanced compensation of Rs.5,600/- (200x28). Deducting the amount already awarded. The balance would be **Rs.2,800/-** (5,600-2,800). 15. It is further contended by the learned counsel that no amount was granted towards damage to clothing. In view of the facts and circumstances, an amount of **Rs.500/-** is granted towards damages to clothing. 16. Next is with regard to the compensation under the head of permanent disability which is the main argument of the learned counsel. According to him, even though Ext.A7 disability certificate was marked without any objection, the Tribunal refused to accept the disability certificate issued by the Doctor and that is against the principle laid down in _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021). 17. Apex court has elaborately discussed the general principles relating to compensation in injury cases in **Raj kumar** . In personal injury cases, heads under which the compensation is M.A.C.A No. 3043 of 2009 **9** 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. 18. 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). 19. 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. M.A.C.A No. 3043 of 2009 **10** 20. In paragraph No.12, Apex Court has also directed that Tribunal may invariably make it a point to required the evidence of Doctor who treated the injured or who assessed the permanent disability. It is also held that if the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board and refer the claimant to such Medical Board for assessment of the disability. 21. In the present case, the Tribunal refused to accept the Ext.A7 disability certificate without opting to sent the claimant to a Medical Board and assess the disability, that is illegal and improper. However, the accident occurred in the year 2004, it will not be just and proper to assess the disability after this long period of time or to remand the matter. Looking at Ext.A7, it appears that the Doctor though certified permanent disability at 8%, it is not discernible whether it is permanent whole body disability. So it will not be proper to accept 8% disability as such as shown in Ext.A7. In view of the nature of the injuries and the period of impatient treatment undergone by the claimant whole body permanent disability at 4% can very well be just and M.A.C.A No. 3043 of 2009 **11** reasonable. Claimant was 38 years at the time of accident. Proper multiplier as per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 (6) SCC 121),** as approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662) (SC)** would be '15'. So towards permanent disability, the claimant will be entitled to get Rs.3,000x12x15x4/100= **21,600/-.** 22. Next contention of the learned counsel is with regard to the amount awarded towards pain and suffering and loss of amenities etc. Towards pain and suffering, the Tribunal already awarded Rs.12,000/-. In view of the nature of the injuries and treatment undergone, I am of the view that Rs.15,000/- can be granted towards pain and suffering. Deducting the amount already awarded, the balance is **Rs.3,000/-** (15,000-12,000). 23. Towards loss of amenities, the Tribunal awarded Rs.8,000/-. In view of the nature of injuries and the disability suffered, I am of the view that Rs.10,000/- can be given towards the loss of amenities. The balance amount would be **Rs.2,000/-** (10,000-8,000). Hence, the claimant is entitled to get an M.A.C.A No. 3043 of 2009 **12** enhanced compensation of Rs. **35,900/-** (Thirty Five thousand nine hundred only) (6,000+2,800+500+21,600+3,000+2,000). 24. In the result, claimant is allowed to realize an enhanced compensation of Rs.35,900/- in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition ie. 09.12.2004 till realization. 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 certified copy of this judgment. 25. The appeal has been filed with a petition to condone delay of 147 days. While condoning the delay by order dated 08.10.2021 in C.M.Appl.No.1/2009 (CMAP.No.3623/2009), 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, interest for the period of 147 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) M.A.C.A No. 3043 of 2009 **13** before the Tribunal with copy to the Standing Counsel for 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** rps/