Hareesh S/o. Nandanan v. Sasi.M.I., Soman A.K. and The Oriental Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **MACA NO. 1324 OF 2012** **AGAINST THE AWARD IN MVAA 3078/2004 OF MOTOR ACCIDENTS CLAIMS** **TRIBUNAL, TRISSUR** ## **APPELLANT/PETITIONER:** **HAREESH S/O. NANDANAN, KARAYIL HOUSE, PERINGOTTUKARA P.O., THANNYAM, THRISSUR. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN** ## **RESPONDENTS/RESPONDENTS:** **1 SASI.M.I,. S/O. ITTIRA, MUTHUKUNNEL HOUSE, VATTAYI, THEKKUMKARA680 026. 2 SOMAN A.K. S/O. KESAVAN, ARASUPARAMBIL HOUSE, P.O. ATHANI, THRISSUR-680 023. 3 THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, MAHESWARI BUILDING, THRISSUR-680 003. BY ADV SRI.M.JACOB MURICKAN-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1324 of 2012 **2** ## **JUDGMENT** Appellant is the claimant in O.P.M.V No.3078/2004 on the file of Motor Accidents Claims Tribunal, Thrissur. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant in a motor accident occurred on 07.09.2004 due to hit with Tempovan bearing Registration No.KL-7/F7471 while he was riding the motorcycle. Total compensation of Rs.2,00,000/- has been claimed. It is alleged that the accident happened due to the rash and negligent driving of the Tempovan by the 1[st] respondent. 2[nd] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. 2. Before the Tribunal, respondents 1 and 2 remained exparte. 3[rd] respondent, insurer filed written statement denying the negligence on the part of the 1[st] respondent and admitting insurance coverage with respect to the offending vehicle. Contributory negligence is also attributed against the appellant since accident happened due to collision between motorcycle and tempo van. 3. PW1 was examined and Exts. A1 to A12 were marked from the side of the appellant. There was no evidence from the side of M.A.C.A No. 1324 of 2012 **3** respondent. On evaluation of evidence and facts and circumstances, Tribunal found that the accident occurred due to the rashness and negligence on the part of the 1[st] respondent, hence the 3[rd] respondent is held liable to indemnify the insured. Tribunal awarded a total compensation of Rs.1,20,177/- under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant (hereinafter be referred as claimant) approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Notice to respondents 1 and 2 dispensed with. Adv.Jacob Murickan, the Standing Counsel appeared on behalf of the 3[rd] respondent, insurer. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the claimant, claimant was working as agent of an insurance company and claimed monthly income of Rs.6,000/-, but the Tribunal arbitrarily fixed his monthly income as Rs.2,500/- which is very low. It is also contended that claimant sustained serious injuries and PW1 Doctor issued Ext.A11 M.A.C.A No. 1324 of 2012 **4** disability certificate certifying 13.4% permanent disability. Tribunal taken disability at 5% and awarded meager compensation. Hence he seeks for enhancement of compensation on above heads. 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. To prove the income of the claimant, Ext.A8 salary slip issued from HBL Private Limited certifying his gross income as Rs.5,263/- for the month of March, 2004. Ext.A7 copy of the license issued to the claimant to act as the insurance agent of Insurance Regulatory and Development Authority, Ext.A6 appointment letter issued on 21.02.2004 by the HBL Global private Limited in which his gross salary shown as Rs.53,584/- etc have been produced. In view of the above facts and circumstances, monthly income of **Rs.6,000/-** claimed can be accepted. 9. 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 M.A.C.A No. 1324 of 2012 **5** classified into two as pecuniary damages (special damages) and non pecuniary damages (general damages). 10. 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). 11. 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. 12. The injuries sustained by the claimant in this case are “Lacerated wounds 3x2cm and comminuted fracture both bones of lower 3[rd] of left leg. He was subjected to fasciotomy and skin grafting followed by long leg cast. He has intermittent admission in the Hospital M.A.C.A No. 1324 of 2012 **6** In total he had undergone 18 days inpatient treatment. 13. PW1 doctor who issued disability certificate was examined and Ext.A11 disability certificate was proved through him. In Ext.A11 certificate, Doctor certified injuries sustained by the claimant as, mal union of left tibia fracture with 10 degree anterior angulation, adherent and depressed scar 10 x 1cm over the anterolateral aspect of left upper leg, 2cm wasting of left quadriceps muscles with loss of 1 grade power, stiffness of left knee with flexion of 180-110 degree, stiffness of ankle with movements from 90-110 degree plantar flexion and 1cm shortening of left leg. Taking those into account, Doctor certified 13.4% permanent disability. Though Doctor was subjected to hectic cross examination, nothing to discredit the certificate or his evidence was brought out. So there is no rationale is reducing the disability to 5% by the Tribunal. Hence, 13.4% permanent disability assessed by PW1 is only to be accepted. 14. In view of the injuries and treatment undergone by the claimant and the nature of his work as insurance agent, loss of earning for 6 months can be granted. So, towards loss of earning, the claimant is entitled to get Rs.36,000/- (6,000x6). Deducting the amount already awarded, the balance would be **Rs.28,500/-** (36,000-7,500). Tribunal M.A.C.A No. 1324 of 2012 **7** awarded Rs.2,000/- towards bystander expenses. It has come out that he had undergone inpatient treatment for 18 days and the accident was in the year 2004. Hence towards by stander expenses, claimant is entitled to get Rs.150/- per day. On that head, claimant would be entitled to get Rs.2,700/-(150x18). Deducting the amount already awarded, the balance would be **Rs.700/-** (2,700-2,000). Towards extra nourishment, only Rs.1,500/- has been awarded. Since he had undergone 18 days inpatient treatment and nature of injuries sustained, **Rs.1,500/-** further awarded towards extra nourishment. The learned counsel also contended that compensation awarded towards pain and suffering is very low. Tribunal awarded Rs.18,000/-. Taking into account the nature of injuries and period of treatment, an amount of Rs.25,000/can be awarded towards pain and suffering. Deducing the amount already awarded, the balance would be **Rs.7,000/-** (25,000-18,000). The learned counsel would also contend that no amount was awarded towards loss of amenities inspite of grievous injuries sustained by the claimant. In view of the period of treatment undergone by him, an amount of **Rs.10,000/-** can be awarded towards loss of amenities. 15. Appellant was 23 years old at the time of accident. The proper multiplier to be applied as held in **Sarla Verma(smt) v. Delhi** M.A.C.A No. 1324 of 2012 **8** **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 6,000x12x13.4x18/100=1,73,664/-. Deducting the amount already awarded, the balance would be **Rs.1,49,664/-** (1,73,664-24,000). Hence, the claimant is entitled to get enhanced compensation of Rs.1,68,864/(1,49,664+700+1,500+7,000+10,000) rounded to **Rs.1,68,900/-.** Total award amount though in excess than claimed, it is permissible under law. Duty is to award just, equitable, fair and reasonable compensation with reference to settled principles. (See **Nigamma and Another v. United India Insurance Co. Ltd. [2009 13 SCC 710: AIR 2009 SC 3056; Rajesh and Others v. Rajbir Singh and Others [2013 (3) KHC 212:2013 9 SCC 54]** ) 16. In the result, claimant is allowed to realize an enhanced compensation of **Rs** . **1,68,900/-** (One lakh sixty eight thousand nine hundred only) in this appeal, which will carry interest at the rate of 6% per annum from the date of petition 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 M.A.C.A No. 1324 of 2012 **9** receipt of certified copy of this judgment, deducting the amount towards the balance court fee. 17. The appeal has been filed with a petition to condone delay of 381 days. While condoning the delay by order dated 30.07.2012 in CMA.No.1578/2012), 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 381 days is excluded. The disbursement of the amount to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 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 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/