K.D. Francis v. Jayan P.B and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 28TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** **MACA NO. 1808 OF 2011** **AGAINST THE DATED 24.7.2010 IN OPMV 3408/2003 OF THE MOTOR** **ACCIDENT CLAIMS TRIBUNAL. THRISSUR** ## **APPELLANT/PETITIONER:** **K.D.FRANCIS, S/O DEVASSY, KUNDUKULANGARA HOUSE, C/O P.V.POULOSE, PULIKKETTIL (P.O), PERINCHERY, THRISSUR DISTRICT** **BY ADV SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** **1 JAYAN P.B, S/O BALAN, PATTALI HOUSE, KATTOOR VILLAGE, VENDUR, MALA DESOM, THRISSUR-680732** - **2 ARUN P.B., S/O BALAN, PATTALI HOUSE, KATTOOR VILLAGE, VENDUR, MALA DESOM, THRISSUR-680732** - **3 UNITED INDIA INSURANCE COMPANY LIMITED, P.B.NO.66, ALENGADAN BUILDINGS, TANA, IRINJALKUDA-680 121** - **4 O.K.SHOUKATHALY, S/O KUNJIBHAVA, OLLAKKOOTTU HOUSE, KAIPAMANGALAM P.O., THRISSUR DISTRICT -680 681** - **5 FRANCIS J, S/O JOHNSON, ALAPPADU HOUSE, KATTOOR VILLAGE, KARANCHIRA DESOM, THRISSUR DISTRICT-680 702** - **6 UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, PARK HOUSE, ROUND NORTH, THRISSUR 680 001 BY ADVS.** **SRI.RAJAN P.KALIYATH SRI.A.D.RAVINDRA PRASAD** **ADV.RAJAN.P.KALIYATH-R3 AND R6** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1808 of 2011 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.3408/2003 on the file of Motor Accidents Claims Tribunal, Thrissur. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant in a motor accident. 2. It is alleged that the accident occurred on 08.8.2003 at about 9 a.m., while the claimant was travelling as pillion rider on motorcycle bearing Reg.No.KL-8/M-4751, through KattoorNedumbra road owned by the 4[th] respondent and driven by the 5[th] respondent. 6[th] respondent is the insurer of the motorcycle. When they reached Kattoor-Nedumbra road an autorickshaw bearing Reg. No.KL-8/H 1965, which is owned by the 1[st] respondent and driven by the 2[nd] respondent, hit the motorcycle and resulted in grievous injurious to appellant. It is alleged that the accident happened due to the rash and negligent driving of the autorickshaw by the 2[nd] respondent. 3[rd] respondent is the insurer of the autorickshaw. Motorcycle on which the appellant was travelling is owned by the 4[th] MACA No.1808 of 2011 3 respondent and driven by the 5[th] respondent. 6[th ] respondent is the insurer of the motorcycle. Total compensation of Rs.2,58,000/- has been claimed. 3. Respondents 1, 2, 4, 5 and 6 remained ex-parte before the Tribunal. 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle. It is also contended that the 2[nd] respondent does not held a valid driving license and badge and there is breach of policy conditions. Negligence on the part of the 2[nd] respondent is denied. It is further contended that the accident occurred due to rash and negligent riding of the motorcycle by the 4[th] respondent. 4. Exhibits A1 to A8 series were marked from the side of the claimant. PW1 was examined. Tribunal on evaluating the evidence and materials and the facts and circumstances came to a conclusion that the 2[nd] respondent is responsible for the accident. 1[st] respondent, the owner of the vehicle is held liable. The 3[rd] respondent insurer is directed to make good the loss sustained by the 1[st] respondent. Compensation of Rs.1,02,827/- in total was awarded. 5. Dissatisfied with the quantum of compensation awarded MACA No.1808 of 2011 4 by the Tribunal under various heads, the claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 6. 3[rd] and 6[th] respondents appeared through Standing Counsel Adv.Rajan P. Kaliyath. Notice to R1, R2, R4 and R5 is dispensed with at the risk of the appellant, since, the policy coverage with respect to the vehicle are admitted. Lower court records were called for and perused. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the 3[rd] and 6[th] respondents. 7. Finding regarding negligence and liability of 3[rd] respondent is not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. 8. According to the learned counsel, the appellant/claimant (herein after be referred as claimant) was 37 years old at the time of accident and he was a furniture worker and his monthly income is Rs.3,000/-. But the Tribunal fixed notional income as Rs.2,500/per month, which is very low, since the accident occurred in the year 2003. It is also contended that the doctor issued disability certificate, who is examined as PW1 and the disability certificate is MACA No.1808 of 2011 5 marked as Exhibit A7. But Tribunal arbitrarily fixed disability at 4%. Hence, according to the learned counsel compensation awarded on all heads are very low and hence seeks for interference on all heads of compensation awarded by the Tribunal. 9. Though, monthly income of Rs.3,000/- has been claimed no evidence as such has been adduced by the claimant to prove the actual income. 10. In **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that 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. MACA No.1808 of 2011 6 11. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-082008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in Ramchandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 12. In this case the accident occurred in the year 2003. Claimant is a furniture worker. So, as per the principles laid down in the above decisions, amount of Rs.3,000/- claimed as monthly income is seems to be reasonable and hence, it is accepted. Hence, monthly income of the claimant is taken as Rs.3,000/- 13. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** the general principles MACA No.1808 of 2011 7 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. 14. 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.1808 of 2011 8 15. In paragraph No.5 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 amounts with reference to circumstances such as age, nature of injury/deprivation/disability MACA No.1808 of 2011 9 suffered by the claimant and the effect thereof on the future life of the claimant. 16. In the present case, claimant produced Exhibit A3 the discharge certificate issued from West Fort Hospital, Thrissur. He was admitted there on 18.8.2003 with fracture of right femur and fracture of 2[nd] , 3[rd] , 4[th] and 5[th] metatarsals of right foot, haematoma on left occipital area, lacerated wound on right foot 10x3x3cm on right knee, 4x3x3cm, contusion on right thigh, and abrasion on left foot. Exhibit A6 series include 3 discharge summaries issued from West Fort Hospital, Thrissur. The 1[st] discharge summary would go to show that he had undergone treatment on 8.8.2003 to 18.8.2003 for Type II open fracture of both bones of right leg. He was subjected to wound debridement and external fixation. He was reviewed on 26.8.2003 and the sutures were removed and he was asked to dress up the wound daily. The 2[nd] discharge summary further shows that he was admitted on 02.9.2003. SSG was done and he was discharged on 19.9.2003 with advice to continue medication and alternate day dressing. He was reviewed on 29.9.2003 and 01.10.2003. 3[rd] discharge summary shows that MACA No.1808 of 2011 10 again he was admitted on 08.10.2003 for closed IL nailing and discharged on 13.10.2003 with advice to review after 5 days medication. The sutures were removed on 18.10.2003. Further review was conducted on 19.11.2003. He had undergone 32 days inpatient treatment in total. An amount of Rs.46,627/- has been spent towards treatment expenses. 17. Taking into account the period of treatment and various procedures undergone by him, the loss of earnings for 4 months taken by the Tribunal seems to be reasonable. So re-fixing the amount towards **loss of earning** compensation under that head would be Rs.3,000x4=Rs.12,000/-. Deducting the amount already awarded by the Tribunal the balance would be **Rs.2,000/-** . (Rs.12,000-10,000). 18. The main dispute is with regard to the permanent disability taken by the Tribunal at 4% instead of 7% whole body disability fixed by the Doctor as per Exhibit A7. The Doctor, who issued Exhibit A7 has been examined as PW1 and depose in terms with certificate issued. Exhibit A7 disability certificate stated injuries as follows: MACA No.1808 of 2011 11 - _1) Fracture both bones (R) leg (Type I open fracture)_ - _2) Lacerated wound over (L) little finger._ - _3) Lacerated wound over (R) hig toe._ 19. The procedures of treatment undergone also has been described in detail and ultimately the Doctor assessed the permanent disability for whole body as 7%. The Doctor, Assistant Professor of Orthopadeics, Medical College, Thrissur, issued the disability certificate. Though, he was cross examined by the learned counsel for the insurer nothing could be brought out to discredit his testimony and the certificate. So also in the award passed by the Tribunal in para No.10 it has been observed that the fracture was found united in the X ray taken on 23.1.2009. But, I could not find any such records enclosed with documents marked from the side of the claimant. 20. In para No.12 of the award the Tribunal has discussed the X ray allegedly taken on 03.3.2008, is not produced. But, considering the serious nature of the fractures and the various surgical procedures undergone by the victim 4% disability has been taken. The records produced from the side of the claimant did not MACA No.1808 of 2011 12 prove that the fracture united. The disability certificate and evidence of Doctor clearly states that United fracture of tibia and malunion of fibula with pain. In Raj Kumar Apex court has held that if at all the Tribunal is not satisfied with the medical evidence adduced by the claimant, Tribunal can constitute a Medical Board (from a panel maintained by it in constitution with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. Without adopting such procedure the Tribunal is not justified in arbitrarily reducing the disability percentage especially in view of the serious injuries and prolonged inpatient treatment undergone by the claimant. So, in view of the facts and circumstances and evidence brought in from the side of the claimant, I am of the considered view that 7% permanent whole body disability assessed by the Doctor, can very well be accepted. 21. Hence, towards **permanent disability** the claimant is entitled to get Rs.3,000x12x15x7/100=Rs.37,800/-. Deducting the amount already awarded the balance would be **Rs18,600/-** (Rs.37,800-19,200). Towards bystander expense Tribunal awarded MACA No.1808 of 2011 13 Rs.3,000/-. The claimant has undergone inpatient treatment for 32 days, the accident was in the year 2003. So Rs.150/- per day can be taken towards bystander expenses. Under the head of **bystander expenses** the claimant is entitled to get Rs.150x32=Rs.4,800/-. Deducting the amount already awarded the balance would be **Rs.1,800/-** (Rs.4,800-3,000). Towards transportation Tribunal awarded Rs.1,500/-. The discharge summary and other documents would reveal that the claimant had undergone inpatient treatment in hospital on several occasions, three discharge summaries are produced. So, towards **transportation expenses** an amount of Rs.3,000/- can be granted. Deducting the amount already awarded by the Tribunal the balance would be **Rs.1,500/-** (Rs.3,000-1,500). Towards pain and suffering reasonable amount has already been awarded. In view of the disability sustained by the claimant as per **Raj Kumar** claimant is entitled to get some amount under the head of loss of amenities. Hence, **Rs.10,000/-** is awarded towards **loss of amenities.** Hence, the claimant is entitled for the enhanced compensation of Rs.33,900/- (Rs.18,600 + 1,800 + 1,500 + 10,000 + 2,000). MACA No.1808 of 2011 14 ## 22. Claim and Award in tabulator form for easy reference: **==> picture [427 x 547] intentionally omitted <==** **----- Start of picture text -----**<br> Amounts<br>Compensation at different Amounts awarded Enhancement by<br>heads claimed(Rs.) by the this Court<br>Tribunal<br>Loss of earning (Total) 18,000 10,000 2,000<br>Loss of earning (partial)<br>Medical and Miscellaneous 46,627<br>60,000<br>expenses<br>Future treatment<br>Bystander expenses 10,000 3,000 1,800<br>Transportation expenses 4,000 1,500 1,500<br>Extra nourishment 3,000 2,000<br>Damage to clothing etc. 3,000 500<br>Pain and suffering 30,000 20,000<br>Disability 50,000 19,200 18,600<br>Loss of earning power 50,000<br>Loss of amenities 30,000 10,000<br>Total 2,58,000 1,02,827 33,900<br>Rounded off to 1,03,000<br>**----- End of picture text -----**<br> MACA No.1808 of 2011 15 23. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.33,900/- (Rupees thirty three thousand nine hundred only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the **date of petition on 12.11.2003** till realisation excluding 360 days, the delay caused in filing this appeal. The 3[rd] respondent 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 certified copy of this judgment. The appellant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Sd/- ## **M.R.ANITHA JUDGE** SMF