K.T. Babu v. The Branch Manager, New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 4[TH] DAY OF APRIL 2022 / 14TH CHAITHRA, 1944 MACA NO. 2432 OF 2012** **AGAINST THE AWARD DATED 28.6.2012 IN OPMV 224/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER:** K.T. BABU AGED 39 YEARS S/O. LATE THOMAS, PERAMKOTTIL HOUSE, MYLAMBADI POST, PANNIMUNDA, MEENANGADI, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. BY ADV SMT.CELINE JOSEPH ## **RESPONDENT/RESPONDENT NO.3:** THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD. M.G.T. BUILDINGS, KALPETTA NORTH, WAYANAD DISTRICT. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW P.JACOB MATHEW-RESPONDENT **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.2432 OF 2012 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (MV) No.224/2010 on the file of Motor Accidents Claims Tribunal, Kalpetta (in short Tribunal). 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/claimant in a motor accident, occurred on 17.11.2009, while the appellant/claimant was travelling in an autorickshaw bearing Reg.No.KL-10F/2185. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent, the driver of the autorickshaw. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the vehicle. Total compensation of Rs.3,07,000/- has been claimed which was limited to Rs.1,50,000 /-. 2. Before the Tribunal, 2[nd] respondent remained ex-parte. 3[rd] respondent filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence attributed against the 1[st] respondent is denied. 3. Exhibits A1 to A8 series and Exhibits B1 and C1 were MACA NO.2432 OF 2012 3 marked. There was no oral evidence from either side. Tribunal on evaluating the evidence and facts and circumstances, found that the accident happened due to rash and negligent driving of the 1[st] respondent and 2[nd] respondent was contractually liable for the acts of the 1[st] respondent. 3[rd] respondent insurer is held liable to indemnify the 2[nd] respondent. The Tribunal awarded a total compensation of Rs.39,200/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 5. Service is complete as against R1 and R2. 3[rd] respondent appeared through Standing Counsel, Adv.Sri.P.Jacob Mathew. Heard the learned counsel for the appellant/claimant as well as the learned Standing Counsel for the insurer. Lower court records were called for and perused. 6. According to the learned counsel, the appellant/claimant (herein after be referred as claimant), he sustained fracture lower end of radious left wrist and plaster was put and he had undergone MACA NO.2432 OF 2012 4 inpatient treatment for two days. The Medical Board certifies 2% permanent disability based on Mc Bride Scale (Body as a whole). As per National Institute of Orthopedically Handicapped Scale (NIOH), his permanent disability is assessed as 5%. But the Tribunal has taken only 2% permanent disability for computing the loss of earning power. He would also contend that the claimant was having monthly income of Rs.5,000/-. But the Tribunal notionally fixed his income as Rs.3,000/- per month, which is very low. 7. Though, income of Rs.5,000/- per month has been claimed, no evidence whatsoever has been adduced to prove the actual income. In **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court has notionally fixed the monthly income of a coolie in an accident of the year 2004 at Rs.4,500/-. 8. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** the Apex Court taken the monthly income of a vegetable vendor at Rs.6,500/- per month with respect to an accident of the year 2008. 9. In the present case, since the claimant was 37 years old MACA NO.2432 OF 2012 5 and the accident was in the year 2005. In view of the settled position of law, monthly income of Rs.5,000/- claimed can be accepted. 10. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** , the 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, 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. MACA NO.2432 OF 2012 6 11. 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). 12. 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 MACA NO.2432 OF 2012 7 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. 13. Exhibit A5 wound certificate would show fracture of left wrist. Exhibit A6 is the discharge certificate issued from Leo Hospital, Kalpetta, which would prove inpatient treatment from 17.11.2009 to 18.11.2009 (2 days). 14. The occupation of the claimant is shown as conducting a tea shop. So, the disability sustained to his left hand would affect his earning capacity to a certain extent. The permanent disability assessed as per National Institute of Orthopedically Handicapped Scale (NIOH) is at 5%. Hence, functional disability of the claimant can reasonably be taken at 4% instead of 2% taken by the Tribunal. 15. The accident and resultant injuries would definitely cause loss of earnings to the claimant. The Tribunal already awarded loss of earning for 3 months. So, taking into account the nature of injuries and occupation, loss of earning for 3 months awarded by the Tribunal MACA NO.2432 OF 2012 8 can be approved. So, towards loss of earnings the claimant is entitled to get Rs.5,000x3=Rs.15,000/-. Deducting the amount already awarded, balance would be Rs.6,000/- (Rs.15,000-9,000). Towards extra nourishment, Tribunal only awarded Rs.200/-. Taking into account two days inpatient treatment and fracture sustained towards extra nourishment Rs.500/-is awarded. Deducting the amount already awarded, balance amount would be Rs.500-200=Rs.300/-. 16. Next is with regard to compensation towards permanent disability. The proper multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '15', since, the claimant was 37 years at the time of accident. Hence, towards permanent disability, claimant is entitled to get Rs.5,000x12x15x4/100=Rs.36,000/-. Deducting the amount already awarded, balance would be Rs.25,200/- (Rs.36,000-10,800). MACA NO.2432 OF 2012 9 17. The learned counsel for the insurer in this context would contend that an amount of Rs.2,000/- has been separately awarded towards loss of earning power. Since, already amount has been awarded towards future loss of earning power, the award again towards loss of earning power would be a duplication. So, from Rs.25,200, amount awarded towards loss of future earning power by the Tribunal, ie. Rs.2,000/- can be deducted, so the balance would be Rs.23,200/- (Rs.25,200-2,000). Towards loss of amenities Rs.2,000/has been awarded. Taking into account nature of injuries and the period of treatment as well as his occupation an amount of Rs.5,000/can reasonably granted towards loss of amenities. Deducting the amount already awarded balance would be Rs.3,000/-. (Rs.5,0002,000). So the claimant is entitled for the enhanced compensation of Rs.32,500/- (Rs.6,000 + 3,00 + 23,200 + 3,000). 18. In the result, the claimant is allowed to realise enhanced compensation of **Rs.32,500/- (Rupees thirty two thousand five hundred only)** in this appeal, which will carry interest at the rate of 6.5% per annum from the date of petition till realisation, excluding 40 days, the delay caused in filing this appeal. The respondent/insurer is MACA NO.2432 OF 2012 10 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 claimant 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