Johny s/o Mani v. M. Palaniammal and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** **MACA NO. 1251 OF 2012** **AGAINST THE AWARD DATED 28.12.2011 IN OPMV 771/2009 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **JOHNY S/O. MANI, RESIDING AT KUZHIKANDATHIL HOUSE, P.O.PANNIAMKARA, KALLINGAPADAM, VAZAKOD, PALAKKAD DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **1 M.PALANIAMMAL W/O. A.MURUKESAN, RESIDING AT NO. 25, K.M.COLONY, 4TH CROSS, 1ST FLOOR, JAYANAGAR, BANGALORE-560 011. 2 ANGAMUTHU S. S/O. SREENIVASA PILLAI, RESIDING AT OLD EDAPPADY ROAD, SANKARI P.O., T.K.SALEM, TAMILNADU-636001. 3 THE NATIONAL INSURANCE COMPANY LIMITED 81D, CHETTY STREET, TIRUCHENCODE-637211. BY ADV SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1251 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.771/2009 on the file of Motor Accidents Claims Tribunal, Ottappalam. 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 in a motor accident occurred on 29.01.2006, while he was riding on a Motor Cycle bearing Registration No.KL-8R-4272 through KallingapadamPandalampadam public road due to hit with lorry bearing Registration No. KA-05AD/2288 driven by the 2[nd] respondent at Pandalampadam. It is contended that the accident happened due to the rash and negligent driving of the 2[nd] respondent, the driver of the offending vehicle. The 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the offending vehicle. Total compensation of Rs.3,47,000/- has been claimed which was limited to Rs.3,00,000/-. 2. Before the Tribunal, the 3[rd] respondent insurer alone M.A.C.A No. 1251 of 2012 **3** contested the matter. Insurance coverage with respect to the offending vehicle is admitted. 3. PWs1 and 2 were examined and Exts. A1 to A11 were marked from the side of the appellant/claimant. There is no oral evidence from the side of the respondents. On evaluating the evidence and facts and circumstances, the Tribunal came to a conclusion that the accident occurred due to the rashness and negligence on the part of the 2[nd] respondent, hence the 3[rd] respondent is held liable to indemnify the 1[st] respondent insured. The Tribunal awarded a total compensation of Rs.1,00,770/- under various heads together with interest at the rate of 7% 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 as against respondents 1 and 2 is dispensed with at the risk of the appellant. Adv.P.M.M.Najeeb khan, appeared on behalf of the 3[rd] respondent. 5. Heard the learned counsel for the appellant and the M.A.C.A No. 1251 of 2012 **4** learned counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the appellant, he is a rubber tapper and monthly income of Rs.6,000/- was claimed by the claimant, but the Tribunal arbitrarily fixed his monthly income as Rs.3,000/- which is very low. It is also contended that though the Doctor issued disability certificate certifying 15% permanent disability, the Tribunal took permanent disability only at 8% for fixing the compensation. It is further contended that compensation awarded under other heads are very low, hence he seeks for enhancement of compensation on all 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. The first aspect is with regard to the monthly income. Claimant was examined as PW2 and deposed that he has been earning Rs.200 per day. But apart from his ipse dixit, there is no convincing materials to substantiate that fact. M.A.C.A No. 1251 of 2012 **5** 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 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** M.A.C.A No. 1251 of 2012 **6** **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. Apex Court fixed the monthly income of a coolie, who met with a road accident in the year 2004, notionally as Rs.4,500/-. In this case, accident was occurred on 29.01.2006 and the claimant was 45 years at the time of accident. Taking into account the settled principles as well as the evidence of PW2, income of the claimant can be taken as **Rs.6,000/-** per month. M.A.C.A No. 1251 of 2012 **7** 12. Next argument is with respect to the disability taken by the Tribunal as 8% instead of disability certified by the Doctor at 15%. 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 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 M.A.C.A No. 1251 of 2012 **8** 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. Ext.A4 wound certificate, Exts.A7 and A8 two discharge summaries would prove that claimant had bleeding from Rt. Ear, lacerated wound 1 x 0.5 cm over Rt. Frontal area, abrasion on forehead, face, nose, Rt. Knee and pain on the neck and CT brain-fracture Rt. Temporal bone and Rt. Temporal SAH and cerebral odema. 17. Ext.A7 discharge card issued from Aswini Hospital M.A.C.A No. 1251 of 2012 **9** would show that C.T. Brain-Cerebral Oedema, Parietal hemorrhagic contusion, Right temporal bone fracture ® temporal thin SDH. He was treated with analgesia, antibiotics and ostioedema measures. He was advised to continue physiotherapy. Ext.A8 discharge summary issued from the same hospital shows the period of inpatient treatment undergone by him from 29.01.2006 to 13.02.2006. The disability certificate would go to show that he sustained head injury with right parietal haemorrhage, right temporal bone fracture, right temporal thin SDH, right hemiplegia. It is noted that Highly prone for seizure. He was advised to continue physiotherapy. Ext.A9 is the disability certificate issued by PW1 certifying 15% permanent disability. Doctor deposed that disability is due to the occurrence of post traumatic epileptic convulsions. He is getting 1-2 convulsions per month. He is on continuous treatment with anticonvulsant drugs. Ext.A8 also noted that 'HIGH PRONE FOR SEIZURE'. He also reiterated in cross examination that 15% disability assessed as whole body. The disability certificate issued by PW1 certifying 15% permanent disability in which the Doctor noted that his present M.A.C.A No. 1251 of 2012 **10** complaints are Epileptic convulsions, Impairment of memory, weakness of right upper and lower limb. The Doctor when examined as PW1 stated that he did not take fresh x-ray or CT scan to assess the disability. He had also admitted that epileptic condition noted by him was merely based on information supplied by the patient and medical records. The information supplied in the medical records seems to be in corroboration with findings of the Doctor in Ext.A8. He had undergone 15 days inpatient treatment. Injuries sustained by him includes fracture of right temporal bone and head injuries. Taking into account the facts as well as evidence of Doctor, I am of the view that 15% disability certified by the Doctor ought to have been taken for calculating compensation for disability. If at all, the Tribunal was not satisfied with the genuineness of the certificate and documents, as per Raj Kumar, the Tribunal ought to have referred the claimant to a Medical Board. Without doing that, unilaterally reducing the disability is not seems to be reasonable. 18. Claimant was 45 years of old at the time of accident. Suitable multiplier to be adopted as per **Sarla Verma(smt) v. Delhi** M.A.C.A No. 1251 of 2012 **11** **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 '14'. So, towards permanent disability, the claimant is entitled to get 6,000x12x14x15/100=Rs.151,200/- Deducting the amount already awarded, the balance would be **Rs.1,10,880/-** (151,200-40,320) 19. The Tribunal taken 3 months for loss of earnings. In view of the facts and circumstances, that can be approved. Hence towards loss of earning, claimant is entitled to get Rs.18,000/- (6,000x3). Deducting the amount already awarded, the balance would be **Rs.9,000/-** (16,000-9,000). Hence, the claimant is allowed to realise an enhanced compensation of **Rs.1,19,800/-** (1,10,880+9,000). 20. In the result, claimant is allowed to realize an enhanced compensation of **Rs.1,19,800/-** (One lakh nineteen thousand eight hundred) in this appeal, which will carry interest at the rate of 7.5% 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 M.A.C.A No. 1251 of 2012 **12** months from the date of receipt of certified copy of this judgment. 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/