K.P. Ramanan Kalappurackkal v Reji Mathew and Abdul Salam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943** ## **MACA NO. 1802 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 549/2009 OF ADDITIONAL MOTOR ACCIDENTS** ## **CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/PETITIONER:** **K.P.RAMANAN KALAPPURACKKAL HOUSE, VAZHAPPALLY (P.O), CHANGANACHERRY. BY ADVS. SRI.M.V.THAMBAN SRI.BIPIN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENTS/RESPONDENTS:** - **1 REJI MATHEW S/O.MATHAI, PALATHARAYIL BETHEL, MALAKUNNAM (P.O),KURICHY, CHANGANACHERRY, PIN - 686 535** - **2 ABDUL SALAM, S/O.MUHAMMED KUNJU VAZHAPPARAMBIL HOUSE, CHUMATHRA KARA, KUTTAPPUZHA VILLAGE, PATHANAMTHITTA, PIN - 689 106. BY ADV SRI.JOSE JOSEPH MANNAR** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1802 OF 2012 2 ## **JUDGMENT** The appellant is the claimant in O.P.(M.V)No.549/2009 on the file of Additional Motor Accidents Claims Tribunal, Kottayam. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1998 (in short, the Act) towards compensation for the injury sustained by the claimant. Appellant/claimant will hereinafter be referred as the claimant. 2. It is alleged that on 26.07.2008 at about 11.20 am while the claimant was riding a bicycle through M.C Road and reached near Punnakkadu junction in Kurichi, a Maruthi van bearing registration No.KL-2L-2492 driven by the 2[nd] respondent came from southern side to north in a high speed and hit on the back of the bicycle, resulting the claimant to fell down and sustaining grievous injuries. The accident happened due to the rash and negligent driving of the 2[nd] respondent. Immediately the claimant was taken to Government Hospital, Kurichi and thereafter referred to Medical College Hospital, Kottayam. The first respondent is the owner of the vehicle driven by the 2[nd] respondent. There was no insurance coverage to the vehicle at the time of accident. Hence the respondents 1 and 2 are jointly and severally alleged to be liable to compensate the claimant. MACA.No.1802 OF 2012 3 The claim is for a total amount of Rs.2,32,000/- 3. Respondents remained exparte before the Tribunal. Before this Court also though they were duly served, there was no appearance on behalf of them. Hence the learned counsel for the claimant was heard. Lower court records were called for and perused. 4. Before the Tribunal Exts.A1 to A8 were marked from the side of the claimant. Tribunal on evaluating the pleadings in the claim petition as well as the materials produced, came to a conclusion that the accident happened due to the rash and negligent diving of the offending vehicle by the 2[nd] respondent. The first respondent being the owner of the vehicle was held vicariously liable for the wrong committed by the 2[nd] respondent. Since there was no insurance coverage during the relevant time to the vehicle, Respondents 1 and 2 were jointly and severally held liable to make good the loss sustained to the claimant. 5. According to the learned counsel, the claimant is a labourer and was 45 years of old at the time of accident. He was hospitalized for total 95 days as inpatient. The injury sustained by the claimant as borne out from Ext.A6 discharge card issued from Medical College Hospital are as follows: MACA.No.1802 OF 2012 4 - (1) Type III open fracture both bones right leg. - (2) Undisplaced fracture proximal third fibula right side. - (3) Fracture mandible. - (4) Lacerated injury right eyelid. 6. It would also go to show that the patient was referred from Government Hospital, Gandhi Nagar, Kottayam with the alleged history of road traffic accident. The date of admission as per discharge card is on 26.7.2008 upto 15.8.2008. Thereafter from 15.08.2008 to 28.10.2008 at Taluk Headquarters hospital, Changanacherry. He has undergone inpatient treatment for total 95 days. 7. The learned counsel relies on Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] wherein 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 (`Act' for short) 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 MACA.No.1802 OF 2012 5 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. 8. 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 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. 9. 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 MACA.No.1802 OF 2012 6 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). 10. 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. 11. In the present case, the contention of the learned counsel is that the notional income of Rs.3,000/- is very low. Claimant is alleged to be a daily labourer. Monthly income claimed is Rs.4,000/-. No document has been produced or other evidence adduced to prove the monthly income. 12. 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 MACA.No.1802 OF 2012 7 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. 13. 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 MACA.No.1802 OF 2012 8 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. 14. The accident in this case occurred in the year 2008. So the income of Rs.4,000/- per month claimed by the claimant can very well be accepted. Type III open fracture both bone of right leg,Undisplaced fracture proximal third fibula and fracture mandible resulting in total 95 days inpatient treatment might have prevented him from going for work for minimum 6 months being a daily labourer. So loss of earning for 6 months can be awarded instead of 5 months, at the rate of Rs.4,000/-, that would come to Rs.24,000/-. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.9,000/-** [4000x6–15000] towards the loss of earnings. 15. Towards bystander expenses, the Tribunal awarded an amount of Rs.1,500/- only. Admittedly, he had been undergoing inpatient treatment for 95 days. The accident occurred in the MACA.No.1802 OF 2012 9 year 2008. So an amount of Rs.250/- per day can be calculated towards bystander expenses for 95 days. That will come to Rs.23,750/-, out of which, Rs.1,500/- already granted to be deducted. So balance amount will be **Rs.22,250/-** . Towards pain and suffering, Rs.30,000/- has been claimed and the Tribunal awarded Rs.20,000/-. In view of the serious nature of the injuries sustained by the claimant Rs.30,000/- claimed towards pain and suffering seems to be just and reasonable. So the balance amount will be **Rs.10,000/-** . An amount of Rs.10,000/- was awarded towards loss of amenities. The claimant has not produced any disability certificate. But taking into account the prolonged inpatient treatment undergone by the claimant, an amount of **Rs.10,000/-** further can be awarded towards the loss of amenities. 16. In the result, the appellant/claimant will be entitled for payment of enhanced compensation of **Rs.51,250/-** (Rupees fifty one thousand two hundred and fifty only) [9,000+22,250+10,000+10,000], which will carry interest at the rate of **7.5%** per annum from the date of petition (06.05.2009) till realisation. Respondents 1 and 2 are jointly and severally held liable to compensate the appellant/claimant and directed to MACA.No.1802 OF 2012 10 pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment. 17. The disbursement of enhanced compensation to appellant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. 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