Jacob v. Saju @ Thankachan and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943** ## **MACA NO. 2670 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 513/2000 OF MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL ,KALPETTA** ## **APPELLANT/PETITIONER:** **1. JACOB, AGED 27 YEARS, S/O.PHILIP, THARAPPEL HOUSE,, SASIMALA P.O., PULPALLY, WAYANAD DISTRICT. BY ADV SRI.N.J.ANTONY** ## **RESPONDENTS/RESPONDENTS:** - **1 SAJU @ THANKACHAN, AGED 34 YEARS, S/O.KURUVILA, KIZHEKANDATH HOUSE, PAZHERI, S.BATHERY, (DRIVER OF THE JEEP NO., KA-12M/7607.D.L.NO.NOT KNOWN).** - **2 T.P.USHA, AGE NOT KNOWN W/O.T.M.PONNAPPAN, USSN BANK, MADAPPURA, COORG, KARNATAKA STATE, (OWNER OF THE JEEP NO.KA-12M/7607).** - **3 ORIENTAL INSURANCE CO.LTD. VATAKARA BRANCH, (LOCAL BRANCH OF THE INSURER, CHICKPET BRANCH, OPPOSITE TOWN HALL, P.B.NO.41, POLICY NO.3853). BY ADV SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2022,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2670/2009 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V.)No.513/2000 on the file of Motor Accidents Claims Tribunal, Kalpetta. Claim petition was filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) for compensation of Rs.3,00,000/- for the injuries sustained by the claimant out of a motor accident occurred on 17.06.2000 at about 7.15 p.m. 2. It is alleged that the claimant was riding motorcycle bearing registration No.KL 12A/5141 from Bathery to Pulpally and when reached at Kanchana Hotel, jeep bearing Reg.No.KA 12M/7607 driven by the first respondent came from the opposite direction and collided with the motorcycle, resulting in serious injuries to the claimant. It is also alleged that the accident occurred due to the rash and negligent driving of the jeep by the first respondent. Second respondent is the owner of the offending vehicle. Third respondent is the insurer. 3. Before the Tribunal, respondents 1 and 2 remained exparte. Third respondent insurer filed written statement MACA No.2670/2009 3 admitting the policy coverage with respect to the offending vehicle. The accident and negligence on the part of the driver of the vehicle are denied. It is also contended that compensation claimed under various heads are excessive. 4. PW1 examined and Exts.A1 to A11 and C1 marked from the side of claimant. 5. On evaluating the evidence and facts and circumstances Tribunal found that the accident happened due to the rash and negligent driving of the first respondent. The third respondent insurer was held liable to pay the amount. Tribunal awarded a total compensation of Rs.77,910/- with interest at the rate of 6% per annum from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal the appellant/claimant came up in appeal for the various grounds stated in the memorandum of appeal. 7. Notice on the respondents 1 and 2 dispensed with at the risk of the appellant/claimant. Third respondent, insurer, MACA No.2670/2009 4 appeared through Sri.M. Jacob Murickan, learned Standing Counsel. Both sides were heard. Lower court records were called for and perused. 8. According to the learned counsel for the appellant/claimant (hereinafter be referred as claimant), the claimant was an agriculturist cum businessman and monthly income of Rs.6,000/- was claimed. But the Tribunal taken the monthly income notionally as Rs.2,100/, which is very low. It is also contended that the compensation awarded under the various heads are also very less and hence he seeks for enhancement on all heads. 9. The learned Standing Counsel for the 3[rd] respondent insurance company on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and hence no interference is called for at the instance of this Court. 10. Though the claimant alleges that he is an agriculturist and a businessman, apart from his oral evidence no convincing evidence has been adduced to establish the MACA No.2670/2009 5 income. So the Tribunal cannot be found fault with for fixing the amount notionally. However, the amount of Rs.2,100/- fixed by the Tribunal seems to be low. 11. In Ramachandrappa v. The 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 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 MACA No.2670/2009 6 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. 12. 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 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. 13. In the present case, the accident occurred in the year 2000. The claimant was aged 25 years old and hence as MACA No.2670/2009 7 per the principles laid down in the above decisions, monthly income can notionally be fixed as Rs.2,500/- per month. 14. 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.2670/2009 8 life etc. The 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 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. 15. 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). MACA No.2670/2009 9 16. In paragraph No.5 of the above decision, 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 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 MACA No.2670/2009 10 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. 17. The injury sustained by the claimant in this case as per Ext.A2 wound certificate is lacerated wound on right thigh and also fracture both bone right leg. Immediately after the accident he was taken to Primary Health Centre, Sulthan Bathery, from there he was referred to Medical College Hospital. As per the records he had undergone treatment further at Baby Memorial Hospital, Calicut where he undergone inpatient treatment from 18.06.2000 to 12.07.2000 and subsequently on 17.03.2003 to 19.03.2003. So in total there was inpatient treatment for 27 days. Ext.C1 is the medical certificate issued by the Medical Board, Wayanad, certifying that he has 10% permanent disability. Ext.A10 is the identity card proving that as on 01.09.1999 he was 24 years. So as on the date of accident on 17.06.2000 he will be 25 years. Ext.A6 is the disability certificate dated 19.04.2001 issued by Dr.Gopakumar T.S., Assistant Professor of MACA No.2670/2009 11 Orthopedics, Medical College, Calicut certifying permanent orthopedic disability based on MC Bride Scheduled as 21%. However it does not certify as 21% whole body disability. By Ext.C1 the Medical Board assessed the disability at 10% i.e. 15.01.2009. Being the certificate issued by the District Medical Board, Wayanad, the Tribunal rightly followed Ext.C1 certificate. 18. In the present case, taking into account the nature of injuries and the period of treatment undergone by the claimant including three surgeries and 27 days inpatient treatment, I am of the view that loss of earning for six months can be awarded. That will come to Rs.15,000/- [2,500x6]. Deducting the amount already awarded, the balance will be Rs.13,000/ - [15,000-2,000]. Towards transport to hospital only Rs.500/- has been awarded. The documents produced from the side of the claimant would prove that he was admitted in hospital for more than three times. So an amount of Rs.1,000/can be fixed towards transportation charges. Deducting the amount already awarded, the claimant will be entitled to get MACA No.2670/2009 12 Rs.500/- [1,000-500]. Towards extra nourishment the Tribunal awarded Rs.500/-. An amount of Rs.1,000/- is awarded towards extra nourishment. So the balance would be Rs.500 /- [1,000500]. Towards bystander expenses the Tribunal awarded Rs.500/-. The accident was in the year 2000. So Rs.75/- per day is taken as daily wage of an attendant. Deducting the amount already awarded, the claimant would be entitled to get an amount Rs.1,525/- [75x27 – 500]. 19. Suitable multiplier as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121], approved by Constitution Bench in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] is '18'. Hence towards permanent disability the claimant is entitled to get Rs.54,000/- [2,500x12x18x10/100]. Deducting the amount already awarded, the claimant would be entitled to get Rs.8,640/ - [54,000-45,360]. Towards pain and suffering, the Tribunal awarded Rs.5,000/-. Taking into account the fact that he had undergone three surgeries and both bone fracture and had undergone 27 days inpatient treatment, an amount of MACA No.2670/2009 13 Rs.10,000/- is awarded towards pain and suffering. Deducting - the amount already granted, the balance would be Rs.5,000/ [10,000-5,000]. 20. As per the dictum laid down in Raj Kumar's case, referred above, the claimant is entitled to get compensation towards loss of amenities also. No amount is seen awarded by the Tribunal under that head. So amount of Rs.7,250/ - is awarded towards loss of amenities. Hence, in total, the claimant is entitled to get Rs.36,415/[13,000+500+500+1,525+8,640+5,000+7,250], which is round off to Rs.36,400/-. 21. In the result, the claimant is allowed to realise enhanced compensation of Rs.36,400/ - (Rupees thirty six thousand four hundred only), which will carry interest at the rate of 7.5% per annum (excluding 69 days delay caused in filing the appeal) from the date of petition till realisation. Third respondent-insurer 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 MACA No.2670/2009 14 certified copy of this judgment. 22. 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 certified copy of this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA JUDGE** **shg/**