Jayesh v. Aji Varghese and United India Insurance Co Ltd (MACA No. 198 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943** **MACA NO. 198 OF 2013** **APPEAL FROM THE AWARD DATED 21.07.2012 PASSED IN OPMV 515/2006 OF** **MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT{PETITIONER IN O.P.{M.V}:515/2006:** **JAYESH, AGED 30, S/O.VIJAYAN, MANIYELL HOUSE, RAYAMANGALAM VILLAGE, RAYAMANGALAM KARA.** **BY ADVS. SMT.ANUPAMA JOHNY SMT.JYOTHY JAWAHAR** ## **RESPONDENTS {RESPONDENTS NO.3, 4 AND 5 IN O.P.{M.V}:515/2006 :** **1 AJI VRGHESE, S/O.VARGHESE, PISHARATH HOUSE, ASHAMANNOOR VILLAGE, CHERUKUNNAM KARA, PERUMBAVOOR-683 542 2 UNITED INDIA INSURANCE CO LTD, BRANCH OFFICE,VADAKKANETHIL TOWERS, PRIVATE BUS STAND ROAD, PERUMBAVOOR-683 542.** ## **SRI.MOHAMED USMAN-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 198 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.515/2006 on the file of Motor Accidents Claims Tribunal, Perumbavoor. 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/claimant (hereinafter be referred as claimant) in a motor accident occurred on 28.02.2006 at about 8.05 p.m., while he was riding a Motor Cycle bearing Registration No. KA.7/P-4514 from Kuruppampady to Kothamangalam, due to hit with a Car bearing Registration No. KL-01/K-1044 driven by the 1[st] respondent. 1[St] respondent is the owner cum driver of the Car and 2[nd] respondent is the insurer. Total compensation of Rs.3,28,000/- has been claimed which was limited to Rs.2,50,000/-. 2. 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. The allegation of negligence on the part of the 1[st] respondent is denied. It is M.A.C.A No. 198 of 2013 **3** contended that the accident happened due to the rash and negligent driving of the claimant himself. Police has charged Crime No.428/2005(A) against the claimant for the offence under Section 279 and 337 of IPC. 3. Exts. A1, A2, X1, X1(a) and X1(b) were marked from the side of the claimant. On evaluating the pleadings as well as other materials, the Tribunal found 50% contributory negligence on the part of the claimant and arrived at a total compensation of Rs.74,944/- under various heads together with interest at the rate of 8% per annum and deducted 50% towards contributory negligence and awarded Rs.37,472/- as compensation. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Since service of notice completed as against respondent 1, but there is no appearance. Adv.Mohamed Usman, the Standing Counsel appeared on behalf of the 2[nd] respondent. 5. Heard the learned counsel for the claimant and the learned Standing Counsel for the 2[nd] respondent. Lower court M.A.C.A No. 198 of 2013 **4** records were called for and perused. 6. According to the learned counsel for the claimant, 50% contributory negligence found against the claimant is wrong and unsustainable and scene mahazar produced from the side of the claimant would go to show that the accident spot is 2.27 metres south from the northern tar end and the total width of the tarred portion of the road is 4.56 metres. the claimant was riding from west to east and hence the claimant's correct side was northern side. Therefore, 50% contributory negligence found against the claimant is unsustainable. 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. Hence he seeks for enhancement of compensation on all heads. 7. The learned Standing Counsel for the 2[nd] respondent on the other hand contended that 50% contributory negligence was rightly found against the claimant by the Tribunal. Police has registered case against the claimant and no contra evidence has been adduced by the claimant to dispute the charge and hence no interference is called for in the finding of contributory negligence. It M.A.C.A No. 198 of 2013 **5** is also contended that just and reasonable compensation has already been awarded by the Tribunal and no enhancement is called for. 8. Monthly income, claimed is Rs.4,500/-. He is alleged to be a Cable Tv operator. The Tribunal fixed his monthly income notionally as Rs.3,000/-. 9. 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 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 M.A.C.A No. 198 of 2013 **6** 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 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. The accident occurred in the year 2006. In view of the M.A.C.A No. 198 of 2013 **7** facts and circumstances, and the dictum laid down in Ramachandrappa and Syed Sadiq, I am of the view that income claimed as **Rs.4,500/-** per month by the claimant can be accepted. 12. With regard to the contributory negligence, Ext.X1(b) scene mahazar would show that accident spot was 2.27 metres south from the northern tar end and the total width of the tarred portion of the road is 4.56. So the correct side of the claimant was northern side. According to the learned counsel, the driver of the car exceeded the middle portion and dashed against the motor cycle. The accident spot was 2.27 metres south from the northern tar end and the total width of the tarred portion of the road is 4.56 metres. Though the claimant was almost on the middle, the police charge was against the claimant. Taking into the fact that the total width of the road is 4.56 metres and the accident was actually occurred on 2.27 metres south from the northern tar end, I find that contributory negligence as against claimant can be reduced to 25% instead of 50% found by the Tribunal. 13. Next is with regard to the quantum of compensation awarded by the Tribunal. In _**Raj kumar v. Ajay Kumar and**_ M.A.C.A No. 198 of 2013 **8** _**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 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 M.A.C.A No. 198 of 2013 **9** (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 in this case is as follows: 1. Deep Lacerated wound 3 x 1 cum anterior abdomen. 2. Multiple abrasions posterior aspect of right forearm and elbow. 3. Lacerated wound 1 x 0.5 cm right ankle. 4. Multiple abrasions on the medial part of ankle right. 5. Abrasion lateral part of chest and ankle. 6. Lacerated wound 2 x1 cm forehead. 7. Lacerated wound 3 x 1 cm upper lip. 14. Ext.A1 is the discharge summary which would go to show that the claimant undergone inpatient treatment from M.A.C.A No. 198 of 2013 **10** 13.11.2005 to 27.11.2005. The diagnosis is extensive facial, tongue and abdominal lacerations extending to chest wall. Laceration over right hand and right knee. EPB tendon injury. Fracture right ulnar styloid process. Fracture proximal and distal phalange right thumb. Fracture right zygomaticomaxillary complex. Fracture right lateral wall of orbit. Wound debridement and suturing done under G.A on 14.11.2005. The above description of injuries in the wound certificate and the procedure of treatment undergone by the claimant would prove the grievousness of injuries sustained by the claimant. But unfortunately no disability certificate was produced and disability was not assessed. Taking those facts into account and the serious of fracture sustained by the claimant as well as procedure undergone, loss of income for 6 months can be taken instead of 3 months taken by the Tribunal towards loss of earnings. Hence, under the head of loss of earnings, the claimant is entitled to get a total compensation of Rs.4,500x6=27,000/-. Deducting the amount already awarded, the balance would be **Rs.18,000/-** (27,000-9,000). 17. Towards fracture of two teeth, the Tribunal awarded M.A.C.A No. 198 of 2013 **11** only Rs.8,000/-. That is enhanced to Rs.10,000/-. Deducting the amount already awarded, the balance would be **Rs.2,000/-** (10,000-8,000). Towards the bystander expenses, the Tribunal awarded Rs.1,400/-. The accident occurred in the year 2006. So towards the by stander expenses, the claimant is entitled to get Rs.200/- per day. On that head, claimant would further be entitled to get enhanced compensation of Rs.2,800/- (200x14). Deducting the amount already awarded, the balance would be **Rs.1,400** (2,800-1,400). Towards pain and suffering, the Tribunal awarded Rs.16,000/-. In view of the serious nature of injuries and period of treatment undergone by him, Rs.25,000/- is awarded towards pain and suffering. Deducting the amount already awarded, the balance would be **Rs.9,000/-** (25,000-16,000). Rs.12,000/- was granted towards loss of amenities by the Tribunal. According to the learned counsel, though the claimant could not produce any disability certificate, he sustained serious injuries and surgery was also undergone by him, taking those facts into account, I am of the view that Rs.20,000/- can be given towards the loss of amenities. Deducting amount already awarded, the balance would be M.A.C.A No. 198 of 2013 **12** ## **Rs.8,000/-** (20,000-12,000). 18. So total amount would be Rs.38,400/(18,000+2,000+1,400+9,000+8,000). From that contributory negligence already founded is to be deducted, the balance would be Rs.28,800/- (38,400-9,600 (25% of 38,400)). 19. The Tribunal already reduced 50% towards contributory negligence. This Court already found 25% contributory negligence against the appellant. Rs.18,736/deducted towards contributory negligence by the Tribunal is to be added. Hence, the claimant is realised to get an enhanced compensation of Rs. 47,536/- (28,800+18,736) rounded to **Rs.47,550/-.** 20. In the result, claimant is allowed to realize an enhanced compensation of **Rs.47,550/-** (Forty seven thousand five hundred and fifty only) 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. M.A.C.A No. 198 of 2013 **13** 21. The appeal has been filed with a petition to condone delay of 58 days. While condoning the delay by order dated 20.12.2021 in C.M.Appl.No.1 of 2013 (CMA.No.224/2013), 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 58 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/