Jameela (on behalf of herself and as mother and guardian of Jamal, Nizar and Nisha) v. C.H. Nagendra Rao and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943 MACA NO. 2063 OF 2013** **AGAINST THE JUDGMENT IN OP(MV) 203/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER :** |**1**|**JAMEELA,**| |---|---| ||**AGED 47 YEARS,**| ||**W/O KAREKATT JAMA,**| ||**P.O. ERIYAD, PAY-BAZAR,**| ||**KODUNGALLUR, THRISSUR DISTRICT.(DIED)**| |**2**|***APPELLANTS 2 TO 4 IMPLEADED**| ||**JAMAL(HUSBAND OF JAMEELA)**| ||**AGED 63 YEARS,**| ||**S/O KUNJABDULLA,**| ||**KAREKKATT VEEDU, P.O. ERIYAD,**| ||**ERIYAD, PAY-BAZAR, KODUNGALLUR,**| ||**THRISSUR DISTRICT, PIN-680664.**| |**3**|**NIZAR,**| ||**AGED 37 YEARS,S/O JAMAL AND JAMEELA,**| ||**KAREKKATT VEEDU, P.O. ERIYAD,**| ||**PAY-BAZAR, KODUNGALLUR,**| ||**THRISSUR DISTRICT,PIN-680664.**| |**4**|**NISHA,**| ||**D/O JAMAL AND JAMEELA,**| ||**W/O LIJO CHAKKALAKKAL,**| ||**PALLIPORT P.O.,**| ||**MUNAMBAM, PALLIPURAM,**| ||**ERNAKULAM - 683515.**| ||**(ABOVE PERSONS ARE IMPLEADED AS ADDITIONAL**| M.A.C.A.No.2063 of 2013 2 **APPELLANTS 2 TO 4 AS PER ORDER DATED 23/10/2020 IN IA 1/2020 IN MACA 2063/2013)** **BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER** ## **RESPONDENTS/RESPONDENTS :** - **1 C.H.NAGENDRA RAO, S/O VENKIDESWARA RAO, DOOR NO.10/165, P.O.KANCHIKACHERALA, KRISHNA DISTRICT, ANDHRA PRADESH, PIN-521 180.** - **2 SANJITH RAO, S/O YESURATHAN, 5/-141-3, RAN CHING, SARALA ROAD, PARITTALA, NANDIKAM TALUK, KRISHNA DISTRICT, ANDHRA PRADESH, PIN-521180.** - **3 NATIONAL INSUJRANCE CO.LTD., ALIBAIG STREET, P.B.NO.385, VIJAYAWADA, KRISHNA, ANDHRA PRADESH, PIN-520 002.** - **4 THE MANAGING DIRECTOR, STATE EXPRESS TRANSPORT CORPORATION LTD., CHENNAI, PIN-600 002.** - **5 SURESH KUMAR, S/O VISWANATHAN, 359, TTC NAGAR, P.O. KUDUVANCHERY, KANCHIPURAM DISTRICT, TAMIL NADU, PIN-603 202.** **R3 BY SRI.P.JACOB MATHEW, STANDING COUNSEL R4 BY ADV.SRI.SUBHASH CYRIAC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2063 of 2013 3 **“C.R.”** ## **M.A.C.A.No.2063 of 2013 -------------------------------------------------------** ## **J U D G M E N T** The petitioner in O.P.(MV)No.203 of 2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, has preferred this appeal, being aggrieved by the award dated 24.10.2009 whereby the Tribunal granted Rs.2,18,500/- as compensation as against the claim of Rs.4,00,000/-. 2. During the pendency of this appeal, original appellant died and her legal representatives were brought in the party array as additional appellants. 3. Respondents 1 to 3 herein are owner, driver and insurer of the vehicle bearing registration No.AP-16/W 8136 and M.A.C.A.No.2063 of 2013 4 respondent No.4 is the owner and respondent No.5 is the driver of bus bearing registration No.TN 1/ N 6742. 4. Brief facts of the case are as follows:- According to the petitioner/original appellant, on 22.08.2005, while she was travelling in a bus bearing registration No.TN 1/ N 6742 driven by respondent No.5 and owned by respondent No.4, she sustained injuries when the bus met with an accident and she underwent treatment. Initially, this petition was filed under Section 163(A) and subsequently got amended as one under Section 166 of the Motor Vehicles Act. 5. Heard the learned counsel for the additional appellants as well as the learned counsel for respondents 4 and 5. 6. The learned counsel for the additional appellants would submit that the left leg below knee of the original appellant was amputated in consequence of the accident and as M.A.C.A.No.2063 of 2013 5 per Ext.A6 disability certificate issued by Dr.A.B.Satheesan, Modern Hospital, Kodungalloor, 70% disability was assessed as on 08.10.2007. However, the Tribunal reduced the disability to 50%. The learned counsel canvassed to refix the disability as certified in Ext.A6, on the submission that, the petitioner, who was a coolie worker, was totally disabled in consequence of amputation of left leg below knee. 7. Per contra, the learned counsel for the contesting respondents would submit that the original appellant's disability was not assessed by a Medical Board and the Doctor who issued Ext.A6 was not examined to prove the contents of Ext.A6. As such, the Tribunal is justified in fixing the disability at 50% and no increase in the percentage of disability is warranted in the facts and circumstances of the case. 8. Going by Exts.A3 and A4 wound certificate as well as discharge card, 82 days hospitalisation for injuries including amputation of left leg below knee could be gathered. M.A.C.A.No.2063 of 2013 6 Considering the fact that the original appellant failed to obtain a Medical Board certificate and to examine the Doctor to prove Ext.A6 to the extent the same certified 70% disability, I am not inclined to interfere with the finding of the Tribunal in the matter of fixing 50% as disability. 9. It is submitted by the learned counsel for the additional appellants further that though Rs.3,000/- claimed as monthly income of the original appellant, the Tribunal took only Rs.1,500/-. Hence, compensation to be revisited taking Rs.3,000/- as the monthly income of the original appellant. 10. Going by the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** during the year 2006 a coolie worker would get Rs.5,500/- per month being notional income. However, the appellant limited her income at the rate of Rs.3,000/- per month after amending Rs.1,500/- claimed earlier. In view of the above, I am inclined to accept Rs.3,000/- as the M.A.C.A.No.2063 of 2013 7 monthly income of the original appellant for assessing the disability income. Apart from that, the Tribunal fixed multiplier as '13' (thirteen) holding the view that the original appellant failed to establish her age in a convincing manner. The learned counsel for the additional appellants would submit that the photocopy of the Aadhar card showing the date of birth of the original appellant as 01.01.1964 had been produced with a petition to receive the same in evidence to convince this Court as regards the actual age of the original appellant on the date of accident. Considering that the matter in issue is one under a Social Welfare Legislation, I am inclined to accept the copy of the Aadhar card in evidence and the same is marked as **Ext.A8** . When fixing the age of the original appellant as per Ext.A8, the same is 41 years. The actual multiplier following the ratio in [2010 (2) KLT 802], **Sarla Verma v. Delhi Transport Corporation** applicable to the age group between 41-45 is '14' instead of '13' fixed by the Tribunal. Therefore, the multiplier M.A.C.A.No.2063 of 2013 8 also is re-fixed as '14'. Thus, the disability income is recalculated as under:- 3,000x12x14x50%=Rs.2,52,000/- out of which, 1,17,000/- was granted by the Tribunal. 2,52,000-1,17,000= **Rs.1,35,000/-** more also is granted under the said head. 11. It is submitted by the learned counsel for the additional appellants further that the Tribunal granted loss of earnings for six months at the rate of Rs.1,500/- and the same also required to be modified taking note of the prolonged injury and in consideration of re-fixation of the monthly income as Rs.3,000/-. 12. The learned counsel for respondents 4 and 5 would submit that the period of six months considered by the Tribunal to assess loss of income need not be increased in view of grant of disability income at 50%. This submission is having force. 13. Having noticed the fact that the monthly income of M.A.C.A.No.2063 of 2013 9 the original appellant is re-fixed at Rs.3,000/-, I am inclined to modify the loss of earnings and therefore, the appellant is entitled to get Rs.18,000/- (6monthsx3000) under this head, viz. **Rs.9,000/-** more than what was granted by the Tribunal. 14. According to the learned counsel for the additional appellants, the compensation granted under the head pain and sufferings is only Rs.30,000/-. The learned counsel would submit that, considering the nature of injuries and period of treatment underwent, the original appellant is entitled to get some more amount under this head. This submission is zealously opposed by the learned counsel for respondents 4 and 5 on the submission that Rs.30,000/- granted under the head pain and sufferings taking note of the parameters prevailing during 2005 (date of accident) need not be increased. Further, it is submitted by the learned counsel for respondents 4 and 5 that as per the decision reported in [2016(2) KHC 870], **Jyni and others v. Raphel P.T. and others** , it was held that the amount granted M.A.C.A.No.2063 of 2013 10 under the head pain and sufferings can only be Rs.15,000/- to the maximum. Accordingly, it is submitted that no further increase under the head pain and sufferings is liable to be granted, in the case on hand, where already the Tribunal granted Rs.30,000/- under the head pain and sufferings. The learned counsel for respondents 4 and 5 given emphasis to paragraphs 35 and 36 of the decision in **Jyni** 's case ( _supra_ ) to assert his point that the pain and sufferings to be granted, shall be confined to Rs.15,000/- alone and nothing more is entitled. 15. I have gone through the judgment placed by the learned counsel for respondents 4 and 5. When reading paragraphs 35 and 36, it is emphatically clear that the Division Bench of this Court considered grant of pain and sufferings in a case of death relying on another decision of the Honourable Supreme Court in [2009 (6) SCC 1], **Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka** and the case considered was not in relation to injuries. That apart, as per the M.A.C.A.No.2063 of 2013 11 decision in [2020(3) KHC 760], **United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and others,** no amount under the head pain and sufferings to be granted in cases of death. Therefore, the ratio of the said decision has no application to the present case. **Thus the pertinent question** **is as to whether any ceiling limit to grant of pain and sufferings in cases of injury?** . In this context, it is relevant to note that in [2017 16 SCC 650], **National Insurance Company Ltd. v. Pranay Sethi & Ors.** , the Honourable Supreme Court held that the grant of just compensation is the principle to be followed under the benevolent legislation. Moreover, in the recent three Bench decision reported in [2020 KHC 6547], [AIR 2020 SC 4424], **Pappu Dio Yadav v. Nareshkumar and others** , the Apex Court held that this Court has emphasized time and again the “just compensation” should include all elements that would go to place the victim in as near a position as she or he was in, before the M.A.C.A.No.2063 of 2013 12 occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives. Therefore, I hold that **no ceiling limit is prescribed in any manner regarding grant of compensation under the head pain and sufferings in cases of injury and reasonable amount found to be just and proper is legally permissible and to be granted. While granting compensation for pain and sufferings, the nature of injuries, the ordeal faced by the victim and its aftermath are factors to be taken into consideration.** Therefore, I am inclined to modify pain and sufferings granted by the Tribunal from Rs.30,000/- to Rs.50,000/- by increasing **Rs.20,000/-** more under the said M.A.C.A.No.2063 of 2013 13 head. 16. It is submitted by the learned counsel for the additional appellants that only Rs.3,000/- granted under the head transportation expenses in a case involving hospitalisation of the original appellant on multiple occasions by carrying her in a vehicle. It is submitted by the learned counsel for respondents 4 and 5 that no documents produced to substantiate the claim under the head transport to hospital despite that the Tribunal granted Rs.3,000/- under that head. The submission appears to be convincing. It is to be observed that in the matter of grant of transportation expenses, the claimant could very well produce receipts issued by the carriers to prove the actual expense. In the absence of such receipts or documents evidencing transporting expenses, a higher amount under the head cannot be granted, though a reasonable amount based on the treatment underwent is permissible. Here, the additional appellants not produced any such documents to substantiate M.A.C.A.No.2063 of 2013 14 entitlement of more amount under the head transport to hospital and therefore, the said claim cannot be granted. In view of the matter, I am not inclined to increase the amount under the head transport to hospital for want of convincing evidence to increase the same in excess of Rs.3,000/-. 17. According to the learned counsel for the additional appellants, as against the claim of Rs.50,000/- under the head loss of discomfort and loss of amenities, the Tribunal granted only Rs.10,000/- and the same is on a lower side considering the nature of injuries and treatment. 18. The learned counsel for respondents 4 and 5 would submit that no such grounds raised in the grounds of appeal. 19. While appreciating the contention raised by the learned counsel for both sides in the matter of grant of loss of amenities, **the moot question emerges is as to whether in an appeal, an appellant who did not specifically raise a claim in the grounds of appeal, cannot press for the** M.A.C.A.No.2063 of 2013 15 **same?** In this context, it has to be answered that **the legal position is no more** _**res integrae**_ **on the principle that an appeal is continuation of the original proceedings and the appellate court is vested with every right of a trial court and the appellate court can re-appreciate the evidence and grant reliefs found to be granted and it is not necessary to include all claims in the grounds of appeal for doing so.** The said legal position is more flexible in cases under the social welfare legislature like Motor Vehicles Act. Therefore, the objection raised by the learned counsel for the contesting respondents has no legal basis. Consequently, I am to hold that there is no legal mandate that claim under each heads should be separately stated in the grounds of appeal and the principle of deciding first appeal is re-appreciation of evidence to find out the infirmity of the award/judgment impugned. 20. Going by the records, it can be seen that the original M.A.C.A.No.2063 of 2013 16 appellant sustained very serious injuries led to amputation of left leg below knee and therefore, a reasonable sum is liable to be granted under the head loss of discomfort and loss of amenities. Therefore, I am inclined to grant **Rs.30,000/-** more under that head considering the particular nature of the case. 21. In the result, this appeal is allowed in part. It is ordered that the additional appellants are entitled to get enhanced compensation to the tune of Rs.1,94,000/- (Rupees One lakh Ninety Four Thousand only) in addition to the amount already awarded by the Tribunal under the impugned award. The entire amount of compensation shall carry interest at the rate of 7% granted by the Tribunal from the date of petition till the date of deposit or realisation. 22. Since the total award amount is Rs.4,12,500/(Rupees Four lakh Twelve Thousand Five Hundred only) the additional appellants are bound to pay Rs.1,250/- as additional court fee. Therefore, the insurance company is directed to M.A.C.A.No.2063 of 2013 17 deposit Rs.1,250/- in the name of MACT by a separate cheque being additional court fee. The insurance company shall deposit the balance in the name of the additional appellants in equal proportion within two months from today and on deposit, they are at liberty to to release the same forthwith. Sd/- **A.BADHARUDEEN, JUDGE** rkj M.A.C.A.No.2063 of 2013 18 ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **ANNEXURE A1** **A TRUE PHOTOCOPY OF THE AADHAR CARD OF THE PETITIONER**