MACA 1539 of 2012: Maneesh S/o Madhusoodhanan v. James Abraham & National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 4[TH] DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943** **MACA NO. 1539 OF 2012** **AGAINST THE JUDGEMENT IN OPMV 1267/2006 DATED 13/10/2011 ON THE** **FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER:** **MANEESH S/O.MADHUSOODHANAN, 'RATNALAYAM', MANAGALAM WARD, ALAPPUZHA.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** **1 JAMES ABRAHAM S/O.ABRAHAM, HOUSE NO.3/116-A, PALAICKAL VEETTIL, CHEMPUMUKKU BHAGOM, THRIKKAKKARA VILLAGE, KAKKANADU, COCHIN-30. 2 NATIONAL INSURANCE CO. LTD. ERNAKULAM BRANCH NO.1, SOUTH JUNCTION, COCHIN-682016. BY ADV SRI.LAL GEORGE-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1539 of 2012 **2** ## **M.R.ANITHA, J.** **----------------------------------------M.A.C.A No.1539 of 2012 ----------------------------------------** Dated this the 4[th] day of February, 2022 ## **JUDGMENT** The appeal has been filed against the award in O.P.M.V No.1267/2006 on the file of Motor Accidents Claims Tribunal, Alappuzha for the injuries sustained by the appellant/claimant. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act). 2. It is alleged that on 20.02.2006 at about 3.00 p.m., while the appellant/claimant was riding a motor cycle through the National Highway and reached near TKM College Junction at Nangyarkulangara, a car bearing Reg.No.KL-07-AN7020 driven by the 1[st] respondent came in a rash and negligent manner and hit the motor cycle, whereby the appellant/claimant sustained serious injuries. The appellant claimed a total compensation of Rs.6,49,000/-. M.A.C.A No. 1539 of 2012 **3** 3. Before the Tribunal, 1[st] respondent remained ex parte and the 2[nd] respondent the insurer filed written statement admitting the policy coverage with respect to the offending vehicle. It is contended that the accident occurred due to the negligence of the appellant/claimant (herein after be referred as claimant). It is also contended that the compensation claimed under various heads are exorbitant. The allegations with respect to age, income and occupation of the claimant are also denied. 4. PW1 and PW2 were examined. Exts.A1 to A10 were marked from the side of the claimant. Tribunal on evaluating the evidence and other materials found that the accident happened due to the rash and negligent driving of the car by the 1[st] respondent, the owner cum driver. Hence the 2[nd] respondent insurer was held liable to indemnify the 1[st] respondent. The Tribunal awarded a total compensation of Rs.2,90,073/-, together with interest at the rate of 7.5% per annum from the date of petition. M.A.C.A No. 1539 of 2012 **4** 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant is before this Court in appeal. Service as against 1[st] respondent is completed. But there was no appearance on behalf of him. The 2[nd] respondent appeared through Standing Counsel Adv.Sri. Lal George. Lower Court records were called for and perused. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the 2[nd] respondent. 6. According to the learned counsel for the claimant, though the claimant was examined as PW1 and gave evidence with respect to his occupation and income, the Tribunal fixed the monthly income notionally as Rs.3,500/-. That is very low. He would also contend that no amount has been awarded towards by stander expenses, though claimant had undergone in-patient treatment for 83 days. Amount awarded under all other heads are less comparing to the grievous nature of injuries sustained by the claimant and hence he seeks for enhancement of compensation on all other heads also. M.A.C.A No. 1539 of 2012 **5** 7. Learned standing counsel on the other hand would contend that document produced to show the income has not been proved and hence the Tribunal notionally fixed the monthly income. A just and reasonable compensation has been awarded on all heads and hence no interference is required at the instance of this Court. 8. Claimant has been examined as PW2. According to him, he is a Sales Executive in Maheendra West Coast Engineering and his monthly income was Rs.5,000/-. Ext.A9 copy of certificate in Automobile Engineering would show that the claimant had undergone prescribed course of training for two years from a Government Recognised Technical Institution and passed the final examination in First Class. Ext.A10 is the attested copy of mark list. He was not cross-examined and his evidence stands unchallenged. 9. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of M.A.C.A No. 1539 of 2012 **6** 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 Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , M.A.C.A No. 1539 of 2012 **7** 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. The claimant was 22 years old and has been working as Sales Executive as borne out from his evidence. Hence in view of the principles laid down by the Apex Court, taking into account the fact that the incident occurred in the year 2006, Rs.5,000/- claimed as monthly income is reasonable and is hereby accepted. ## 12. In **Raj Kumar v. Ajay Kumar and Another** M.A.C.A No. 1539 of 2012 **8** (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 to 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. 13. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the 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 M.A.C.A No. 1539 of 2012 **9** 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). 14. 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. In this case the claimant sustained the following injuries. 1. Lacerated wound of 10x8 cms. Over dorsum exposing crushed extensor tendons and fracture metatarsal I-V shaft and rarsometatarsal dislocation I-III with near total amputation of great toe and 2[nd] toe. 2. Communited fracture metatarsals. 3. Severe contamination with mid IInd toe-no sensations distally. 4. Great toe-capillary refill absentsensations+over planter aspect. 5. Tenderness, swelling, crepitus M/3(L) clavicle. 6. Communited fracture M/3 (L) clavicle. M.A.C.A No. 1539 of 2012 **10** 15. Claimant as PW2 deposed that there was loss of two toes of right leg and he sustained fracture of collar bone and hence cannot do the job of Sales Executive and is working presently in a private institution as teacher with low salary. 16. PW1 is the Doctor who issued disability certificate which is marked as Ext.A1 has given a detailed narration about the injuries sustained by the claimant in tune with the injuries noted above and would state about the maluntied fracture on the left clavilce. It is also stated that the disability is whole body. Doctor certified 20% whole body disability and during cross examination, he has stated that he verified the treatment records and nothing could be brought out to discredit his testimony with respect to the percentage of disability certified. The Tribunal also accepted 20% disability as certified in Ext.A1 certificate. It has come out that claimant has undergone in-patient treatment for 83 days. The Tribunal awarded loss of earnings for a period of six months. That can be maintained. So under the head of loss of earnings, the claimant is entitled M.A.C.A No. 1539 of 2012 **11** to get Rs.5,000 x 6 = Rs.30,000. Amount already awarded is to be deducted ie. Rs.30,000 – Rs.21,000, it will come to **Rs.9,000/-.** 17. Towards the transportation charges, an amount of Rs. **500/-** more can be granted in view of the fact that he had been to hospital more than once. Towards pain and sufferings, the amount awarded by the Tribunal is Rs.20,000/-. In view of the nature of injuries and treatment and the disability certificate of the Doctor, I am of the view that an amount of Rs.25,000/- can be granted towards pain and sufferings. Deducting the amount already awarded, the balance would be Rs **.5,000/-.** 18. Under the head of permanent disability, the claimant is entitled to get Rs.2,16,000/- (Rs.5,000 x 12 x 18 x 20/100 = Rs.2,16,000). Deducting the amount already awarded, the balance would be Rs **.64,800/-** 19. It is also contended by the learned counsel that the Tribunal awarded an amount of Rs.89,073/- in total towards treatment charges and by stander expenses. M.A.C.A No. 1539 of 2012 **12** According to him, the medical bills for Rs.89,073/- has been perused by the Tribunal and no separate amount is awarded towards by stander expenses. But on analysing the compensation awarded by the Tribunal, it could be seen that Rs.8,300/- (83 days x Rs.100/- per day) is towards by stander expenses. But since the incident was in the year 2006, Rs.250/- per day can be taken towards by stander expenses. So towards by stander expenses the claimant is entitled to get Rs.20,750/- (Rs.250/- x 83). Deducting the amount already awarded the balance would be Rs.12,450/- (Rs.20,750 – Rs.8300) 20. No amount is seen awarded towards extra nourishment. Claimant was 22 year old youngster. He had undergone 83 days in-patient treatment. So Rs.3,000/- can be awarded towards extra nourishment. No amount has been awarded towards loss of amenities. In view of the serious nature of injuries and the disability suffered by the claimant at 20%, an amount of Rs. **15,000/-** can be awarded towards loss of amenities. Hence, the claimant is entitled to get an M.A.C.A No. 1539 of 2012 **13** enhanced compensation of Rs.1,09,750/- (Rs.9,000 + Rs.500 + Rs.5,000 + Rs.64,800 + Rs.12,450 + Rs.3,000 + 15,000). 21. In the result, claimant is entitled to get an enhanced compensation of Rs.1,09,750/- 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 months from the date of receipt of a certified copy of this judgment. 22. The appeal is filed with a petition to condone delay of 20 days. While condoning the delay by order dated 08.10.2021 in C.M.Appl.No.2/2011 (CMAP.No.1842/2012), it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 20 days is excluded. 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 M.A.C.A No. 1539 of 2012 **14** Code of the branch) before the Tribunal, within one month from the date of receipt of a certified copy of this judgment. Sd/- **M.R.ANITHA JUDGE** rps/jsr