Hamza v. Syed Muhammed and United India Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** **MACA NO. 1112 OF 2013** **AGAINST THE AWARD IN OPMV 837/2007 OF MOTOR ACCIDENTS CLAIMS** **TRIBUNAL, PALAKKAD** ## **APPELLANT/PETITIONER:** **HAMZA AGED 18 YEARS S/O.ABDUL KADAR, PEEDIKAYIL HOUSE, PAZHAYAPADAM, ADIPPERANDA , KAIRADY, NEMMARA, PALAKKAD DIST BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS/RESPONDENTS:** **1 SYED MUHAMMED, AGED 38 YEARS S/O.MUHAMMED , KOZHIKKADE HOUSE, TARUR, ALATHUR, PALAKKAD-678541(OWNER CUM DRIVER OF THE VEHICLE KL-493061)PIN 678 541. 2 UNITED INDIA INSURANCE COMPANY LTD NEMMARA, PALAKKAD-678 508 BY ADV SMT.P.A.REZIYA-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1112 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.837/2007 on the file of Motor Accidents Claims Tribunal, Palakkad. 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 12.06.2007, while he was travelling on a Motor Cycle ridden by his uncle and reached at the Chundakkad, an Auto Rickshaw bearing Registration No. KL-49/306 driven by the 1[st] respondent hit the Motor Cycle on which the appellant/claimant was travelling, thereby he sustained grievous injuries. Immediately he was taken to Crescent Hospital, Alathur, there he undergone inpatient treatment for 13 days. Total compensation of Rs.3,00,000/- has been claimed. 2. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent, the driver of the Auto Rickshaw. The 1[st] respondent is the owner cum driver of the M.A.C.A No. 1112 of 2013 **3** offending vehicle. The 2[nd] respondent is the insurer of the offending vehicle. 3. Before the Tribunal, 1[st] respondent the owner cum driver of the offending vehicle remained ex parte and the 2[nd] respondent insurer filed written statement admitting the insurance coverage with respect to the offending vehicle. It is contended that the accident happened due to the rash and negligent riding of the rider of the motor cycle on which the appellant/claimant was travelling and further contended that the compensation claimed under various heads are excessive. 4. PW1 was examined and Exts. A1 to A10 were marked from the side of the appellant/claimant. On evaluation of the evidence and facts and circumstances, the Tribunal found that the accident occurred due to the rashness and negligence on the part of the 1[st] respondent, hence the 2[nd] respondent is held liable to indemnify the 1[st] respondent insured. The Tribunal awarded a total compensation of Rs.1,05,000/- under various heads together with interest at the rate of 7.5% per annum. 5. Dissatisfied with the quantum of compensation M.A.C.A No. 1112 of 2013 **4** awarded by the Tribunal, the appellant/claimant approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Notice to the 1[st ] respondent has been dispensed with at the risk of the appellant since the 2[nd ] respondent insurer admitted the policy coverage with respect to the offending vehicle. Records also would show that 1[st] respondent refused to accept the notice sent. Adv.P.A.Reziya, the Standing Counsel appeared on behalf of the 2[nd] respondent. 6. Heard the learned counsel for the appellant and the learned Standing Counsel for the 2[nd] respondent. Lower court records were called for and perused. 7. According to the learned counsel for the appellant, claimant was a student aged 18 years old but the Tribunal fixed his annual income as Rs.15,000/- which is very low. It is also contended that the amount awarded under other heads are very low in view of the grievous nature of injuries and disability sustained by the claimant. Hence he seeks for enhancement of compensation on all heads. 8. The learned Standing Counsel for the 2[nd] respondent M.A.C.A No. 1112 of 2013 **5** 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. 9. The claimant was alleged to be a student and no documents have been produced to prove as to which course he has been studying. However, there was no dispute in this aspect. The accident was in the year 2007. 10. 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 need not accept the claim of the claimant, in the absence of supporting M.A.C.A No. 1112 of 2013 **6** 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 prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per M.A.C.A No. 1112 of 2013 **7** month. 12. In the present case, the claimant was a student aged 18 years and the accident was occurred in the year 2007. In view of the facts and circumstances, and the dictum laid down in above decisions, I am of the view that income of the claimant can be taken as Rs.4,500/- per month. 13. In _**Raj kumar v. Ajay Kumar and 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 treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages M.A.C.A No. 1112 of 2013 **8** 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 claimant. 16. The injuries sustained by the claimant is as follows: 1. Comminuted type-II compound intra articulated fracture right. 2. Lacerated wound left angle of mount, contusion lips (remaining portion not readable) M.A.C.A No. 1112 of 2013 **9** ## 3. Abrasion on the right wrist. 4. Abrasion on the forehead. ## 5. Abrasion right eye. ## 6. Outer cornea. 17. Ext.A7 the discharge summary would prove that he had undergone inpatient treatment for 13 days. Ext.A10 is the disability certificate certifying 5% permanent disability to right lower limb. Hence, the Tribunal taken permanent whole body disability at 3%. Being a student, there will be no income to the claimant and the amount of Rs.4,500/- has been notionally fixed only for the purpose of calculation of compensation towards the permanent disability. In **Mekala v. Malathi.M and Another** [2014 11 SCC 178], a claim out of injury sustained to a girl student sustaining 70% permanent disability who was a brilliant student secured first rank in the 10[th] standard, monthly income has been taken as Rs.10,000/- in an accident occurred on 11.04.2005 by the Apex Court, but no compensation is awarded under the head of loss of earning. At the time of argument though there was argument for award of compensation under the head of loss of earning, legally it M.A.C.A No. 1112 of 2013 **10** cannot be allowed, and there is no claim under that head also. 18. The Tribunal taken permanent whole body disability at 3% instead of disability certificate certifying 5% disability, that can be followed here also since 5% disability is certified to right lower limb. Suitable multiplier to be adopted as per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '18'. So, towards permanent disability, the claimant is entitled to get 4500x12x18x3/100=Rs. **29,160/-.** Deducting the amount already awarded, the balance would be **Rs.21,060/-** (29,160-8,100) 19. Towards the bystander expenses, the Tribunal awarded Rs.2,100/-. It has come out that he had undergone inpatient treatment for 13 days and the accident was occurred in the year 2007. Hence towards by stander expenses, claimant is entitled to get Rs.250/- per day. On that head, claimant would be entitled to get Rs.3,250/-(250x13). Deducting the amount already awarded, the balance would be **Rs.1,150/-** (3,250-2,100). Towards loss of amenities, Rs.10,000/- was awarded by the Tribunal. M.A.C.A No. 1112 of 2013 **11** Taking into the facts and circumstances, especially being a student, that can be enhanced to Rs.15,000/-. Deducting the amount already awarded, the balance would be **Rs.5,000/-** (15,000-10,000). Towards extra nourishment, an amount of Rs.1,500/- awarded by the Tribunal. In view of the facts and circumstances, **Rs.1,500/-** is further awarded under the head of extra nourishment. Hence, the claimant is entitled to get an enhanced compensation of Rs. 28,710/- (Twenty eight thousand seven hundred and ten only) (21,060 **+** 1,150+5,000+1,500) rounded to **Rs.28,700/-** . 20. In the result, claimant is allowed to realize an enhanced compensation of **Rs.28,700/-** 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. 21. The appeal has been filed with a petition to condone delay of 357 days. While condoning the delay by order dated M.A.C.A No. 1112 of 2013 **12** 23.02.2013 in CMA.No.1/2013 (CMA.No.1349/2013), 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 357 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) 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/