# **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. 977 OF 2013**
**AGAINST THE AWARD DATED 29/07/2011 IN OPMV 426/2004 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM**
## **APPELLANT/PETITIONER:**
M.T.THOMAS, AGED 46 YEARS S/O.THOMAS, MUNDATHIL HOUSE, KALABOOR ROAD, PAZHOOR P.O., PIRAVOM, PIN - 686 664. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH
## **RESPONDENTS/RESPONDENTS:**
1 M.K.SAJIMON, S/O KRISHNANKUTTY KAVUNKAL HOUSE, EZHACHERRY P.O., ANTHINAD, KOTTAYAM - 686 651. 2 NATIONAL INSURANCE COMPANY LIMITED BY ITS MANAGER, REGIONAL OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN - 35. BY ADV SRI.A.A.MOHAMMED NAZIR SRI.A.A MOHAMMED NAZIR-R2
## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION**
**ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
This appeal has been filed against the award passed in O.P. (M.V) No.426/2004 on the file of Principal Motor Accidents Claims Tribunal, Ernakulam. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation for the injury sustained by the appellant/claimant (hereinafter be referred as the claimant).
2. It is alleged that the accident occurred on 24.8.2003 at about 1.00 p.m., while the claimant was travelling in an autorickshaw bearing Reg.No.KL-5/F-6501 driven by the 1[st] respondent. 1[st] respondent is the owner cum driver of the autorickshaw, the offending vehicle. 2[nd] respondent is the insurer of the vehicle. It is alleged that the accident happened due to the rash and negligent driving of the autorickshaw by the 1[st] respondent. The claim is for a total amount of Rs.4,98,000/- which is limited to 3,00,000/-.
3. Before the Tribunal, 1[st] respondent remained ex-parte. 2[nd] respondent insurer filed written statement admitting the policy
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coverage with respect to the offending vehicle. The claim under various heads are disputed. The claimant was put to strict proof regarding the averments in the claim petition with regard to the income and occupation.
4. Exhibit A1 to A12 were marked from the side of the claimant. PW1 to PW3 were examined. Tribunal on evaluating the evidence as well as the materials produced, came to a conclusion that the accident happened due to the rash and negligent driving of the offending vehicle by the 1[st] respondent. 2[nd] respondent Insurance Company was held liable to pay the compensation. The Tribunal awarded a total compensation of Rs.1,68,526/-.
5. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal.
6. Notice to 1[st] respondent was dispensed with at the risk of the appellant. Adv.A.A.Muhammed Nazir, appeared on behalf of the 2[nd] respondent/insurer. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 2[nd] respondent,
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Insurance Company. Lower court records were called for and perused. 7. According to the learned counsel for the claimant, the claimant was aged 37 years at the time of accident. He sustained grievous injuries due to the accident. It is also contended that the monthly income has been notionally fixed as Rs.6,000/- which according to the learned counsel for the claimant is very low. Pleadings in the claim petition is that he was a waiter and his monthly income is Rs.6,500/. So, evidence of PW1 that the salary at the time of accident was Rs.9,667/-, is not in corroboration with the pleadings. So also the person who issued the salary certificate (Exhibit A6) showing the income as Rs.9,667/- is not examined. Claimant also did not mount the box to explain the above discrepancies.
8. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal under various heads and no interference is called for at the instance of this Court.
9. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the
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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 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
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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 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. According to the learned counsel for the claimant, the accident was in the year 2003. The evidence of PW1 the designated Secretary of Casino Hotel and Exhibit A6 is not in corroboration with the pleadings in the claim petition. Claimant also not mounted the box to clear the discrepancies. So, taking into account the facts and circumstances Rs.6,500/- can be taken as his monthly income.
12. The learned counsel relies on **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]**
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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 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.
13. 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
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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.
14. 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).
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
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injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant.
16. In this case, Exhibit A2 is the wound certificate produced which shows that the claimant sustained following injuries:
_1. Lacerated wound on the left knee_
_2. Multiple abrasions on the forearm_
_3. Pain and tenderness over the left femur,_
_4. Lacerated wound on the left lower thigh 3x2x1 cm_
_5. Fracture shaft of left femur middle third_
_6. Laceration left knee with tissue loss._
17. Exhibit A3 is the discharge summary. He was treated with wound debridement and high tibial traction. Rotation Gastronemius muscle flap for wound over (L) knee, Debridement of muscle flap, SSG over (L) upper leg, Closed IM Nailing with IL nail. He had undergone 63 days inpatient treatment.
18. So, taking into account the facts and circumstances, loss of earning as per Exhibit A6 certificate for 5 ½ months can be taken.
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Towards loss of earning the claimant is entitled to get Rs.6,500x5.5=Rs.35,750 From that amount already awarded for 91 days to be deducted, the balance would be Rs.27,742/- (Rs.35,7508,008). Deducting the amount already awarded by the Tribunal balance would be Rs.9,742/- (Rs.27,742-18,000).
19. The next contention of the learned counsel is with regard to pain and suffering. The compensation awarded by the Tribunal is Rs.15,000/- which according to the learned counsel is very low. In view of the continued treatment of 66 days undergone by the claimant as well as the nature of injuries sustained by him and other facts and circumstances Rs.30,000/- can be awarded towards pain and suffering. Deducting the amount already awarded by the Tribunal, balance would be Rs.15,000/- (Rs.30,000-15,000).
20. The learned counsel also would contend that amount awarded towards loss of amenities is very low, in view of the nature of injuries sustained by the claimant. A photograph of the claimant was shown at the time of argument. The learned counsel for the insurer would contend that an amount of Rs.23,040/- has already been
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awarded towards permanent disability. However, taking into account the facts and circumstances, an amount of Rs.7,000/- is further awarded towards loss of amenities. Towards bystander expense the Tribunal awarded only Rs.7,875/-. The accident is of the year 2003, Rs.150/- per day can be taken as bystander expense. Hence, towards bystander expense the claimant is entitled to get Rs.9,900/(Rs.150x66). Deducting the amount already awarded the balance would be Rs.2,025/- (Rs.9,900-7,875). So, the claimant is entitled to get enhanced compensation of Rs.33,767/- rounded off to Rs.33,700/-. (Rs.9,742 + 15,000 + 7,000 + 2,025).
21. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.33,700/** - **(Rupees thirty three thousand seven hundred only)** which will carry interest @ **7.5%** per annum from the date of petition excluding the period of delay of 671 days in filing the appeal. The 2nd respondent/insurer shall satisfy 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.
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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 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
