MACA 689 of 2013 & CO 38 of 2022, High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943** **MACA NO. 689 OF 2013** **AGAINST THE AWARD PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR, IN OPMV 1298/2006 DATED 09.10.2012** **CO 38/2022 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 3:** 1 THE DIRECTOR GENERAL, NCC HEAD QUARTERS NEW DELHI 2 GOVERNMENT OF INDIA, REPRESENTED BY THE SECRETARY, DEFENCE DEPARTMENT, CENTRAL SECRETARIAT, NEW DELHI BY ADVS. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA SRI.JAISHANKAR V.NAIR, CGC ## **RESPONDENTS/PETITIONER & 2ND RESPONDENT:** 1 JAMES, S/O ANTONY KURUTHUKULANGARAMEAN PARAMBIL HOUSE, PERINCHERY (P.O), OLLUR-VIA THRISSUR DISTRICT-680 306 2 BALAKRISHNAN, S/O SANKUNNY EXHUTHACHAN THENGUVALAPPIL HOUSE, MADAKKATHARA THRISSUR DISTRICT-680 651 BY ADVS. SRI.P.V.CHANDRA MOHAN - R1 SRI.SAJAN MANNALI - R2 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943** **CO NO. 38 OF 2022** **AGAINST THE ORDER/JUDGMENT IN MACA 689/2013 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTOR/1ST RESPONDENT** JAMES, S/O ANTONY AGED 41 YEARS, S/O. ANTONY, KURUTHUKULANGARAMEAN PARAMBIL HOUSE, PERINCHERY (PO), OLLUR (VIA), THRISSUR DISTRICT BY ADV P.V.CHANDRA MOHAN ## **RESPONDENTS/APPELLANNTS AND R2:** 1 THE DIRECTOR GENERAL NCC HEAD QUARTERS, NEW DELHI 2 GOVERNMENT OF INDIA REPRESENTED BY THE SECRETARY, DEFENCE DEPARTMENT, CENTRAL SECRETARIAT, NEW DELHI 3 BALAKRISHNAN, S/O. SANKUNNY EZHUTHACHAN, THENGUVALAPPIL HOUSE, MADAKKATHARA, THRISSUR DISTRICT BY ADVS. SRI.MANU.S, CGC SAJAN MANNALI **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 ## **JUDGMENT** Appellants are 1[st] and 3[rd] respondents in O.P.(M.V) No.1298/2006 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) towards compensation for the injury sustained by the 1[st] respondent/claimant in an accident occurred on 04.4.2005 at about 3.25 p.m, while 1[st] respondent/claimant was riding scooty bearing Reg.No.KL8/T 1057 through Pallikulam public road due to hit with NCC Truck No.BA No.93-D 95139-A. Due to the accident 1[st] respondent/claimant sustained grievous injuries. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent, the driver of the Truck. Total compensation of Rs.1,04,000/- has been claimed. 2. Before the Tribunal, 1[st] and 2[nd] respondents remained exparte. The 3[rd] respondent filed written statement admitting the policy 4 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 coverage with respect to the offending vehicle. The rashness and negligence on the part of the 2[nd] respondent is denied. 3. Exhibit A1 to A11 series were marked from the side of the 1[st] respondent/claimant. The Tribunal on evaluating the pleadings and materials produced awarded a total compensation of Rs.1,11,570/which is rounded to Rs.1,11,600/-. 4. Aggrieved by the award passed respondents 1 and 3 came up in appeal before this Court on various grounds stated in the memorandum of appeal. 5. The 1[st] respondent/claimant filed cross objection, contending that the amount of compensation awarded under various heads is very low. It is also contended that disability certificate issued by the Doctor certified 10% permanent disability. But the Tribunal taken permanent disability at 6% for awarding loss of earnings. Hence, 1[st] respondent/claimant seeks for enhancement on all heads. Appeal and cross objection were heard. 6. Adv.P.Chandra Mohan, appeared on behalf of the 1[st] 5 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 respondent. Heard both sides. Lower court records were called for and perused. 7. According to the learned counsel for the appellant, the finding of negligence on the part of the 2[nd] respondent is illegal and irrational. Actually, the vehicle was parked on the road side and the claimant was standing by its side when the accident took place. However, in the claim petition, it is alleged that the accident occurred while he was riding the scooty. 8. The learned counsel for the 1[st] respondent/claimant on the other hand would contend that the claimant produced FIR, Scene Mahazar and charge sheet along with copy of AMVI report to prove the accident and injury sustained by the 1[st] respondent/claimant (hereinafter be referred as claimant). Though the appellants dispute the accident as alleged by the claimant, they did not take any steps to adduce any evidence to controvert the police charge sheet. 9. As per the decision in **New India Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648]** , it has been held by this court 6 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 that as a general rule, production of charge sheet is prima facie sufficient evidence to prove negligence in a claim under Section 166 of the MV Act and it can be accepted as evidence of proof of negligence and if at all any of the parties wanted to dispute the same, the burden is upon such party to adduce oral evidence and discredit the charge sheet. 10. The appellant did not adduce any evidence to discredit the charge sheet and hence, the finding of negligence on the part of the 2[nd] respondent, the driver of NCC Truck is only to be confirmed. 11. The learned counsel for the appellant would also contend that the Tribunal went wrong while fixing the monthly income as Rs.3,500/- without any evidence to prove the income. But the learned counsel for the claimant on the other hand would contend that the claimant is a Post Graduate in Commerce and attested copy of the Bachelor of Commerce certificate is produced as Exhibit A10 and Exhibit A11 is the Provisional Certificate issued to prove that he had passed Master of Commerce degree examination with 3[rd] class. Exhibit A10 and A11 certificates prove the educational qualifications 7 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 of the claimant. 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 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. 8 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 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 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. In this case, the accident occurred on 04.4.2005. Hence, in view of the facts and circumstances and the principles of law laid down in the above cited decisions the monthly income of Rs.4,500/claimed is reasonable and hence is accepted. 15. The learned counsel relies on **Raj Kumar v. Ajay Kumar** MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 9 ## **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 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. 16. 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 10 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 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. 17. 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). 18. 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 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 11 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. 19. In this case, the appellant sustained following injuries: Depressed fracture right frontal bone with displacement, multiple frontal scalp wound, multiple bodily injuries. Medical bills for Rs.6,430/-was produced. He had undergone inpatient treatment for 9 days. So, taking into account the fact that the nature of injuries, **loss of earning** computed for 2 months by the Tribunal can very well be approved and that can be re-fixed as Rs.4,500x2=Rs.9,000/-. Deducting the amount already awarded, balance would be **Rs.1,500/-** (Rs.9,000-7,500). 20. The main contention of the claimant is with regard to the compensation awarded by the Tribunal under the head of disability. Disability certificate is produced as Exhibit A8, but it is contended by the learned counsel for the appellant that it was marked subject to objection. 12 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 21. As per **Raj Kumar** if at all the Tribunal is not satisfy with the medical evidence adduced by the claimant, it is the duty of the Tribunal to refer the patient to Medical Board. However, in this case it has come out that he had undergone inpatient treatment for 9 days only and medical bills for Rs.6,430/- alone has been produced. So taking into account the facts and circumstances, even though 10% permanent disability is assessed by the Doctor, 6% whole body disability taken by the Tribunal is seems to be just and reasonable. 22. According to the learned counsel for the claimant, in the wound certificate as well as in claim petition the age of the claimant has been stated as 25 years. But the Tribunal taken the age of the claimant as 26 years, which according to him is wrong. The learned counsel for the appellant on the other hand would contend that there is a specific finding in the award that the claimant is aged 26 years. He would also drew my attention to Exhibit A8, disability certificate his age has been stated as 33 years. But it is to be noted that the accident in this case on 04.4.2005. The disability certificate has been issued after 7 years on 03.8.2010, that will after his 25[th] birthday. So 13 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 at the time of incident he would be 25 years only. So, the multiplier to be adopted is ‘18’ instead of ‘17’ taken by the Tribunal. Hence, towards **permanent disability** the claimant is entitled to get Rs.4,500x12x18x6/100=Rs.58,320/-. Deducting the amount already awarded, balance would be **Rs.15,480/-** (Rs.58,320-42,840). 23. The learned counsel for the claimant further would contend that the amount awarded towards pain and suffering is Rs.14,000/-. So, taking into account, the period of treatment and injuries are sustained on head, compensation towards **pain and suffering** is enhanced to Rs.15,000/-. Deducting the amount already awarded, balance would be **Rs.1,000/-** (Rs.15,000-14,000). 24. So the total **enhanced compensation** the claimant is entitled to realise is **Rs.17,980/- rounded to Rs.18,000/-** (Rs.15,480+1,000+1,500). 25. Compensation awarded is tabulated for easy reference as follows: MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 14 **==> picture [410 x 584] intentionally omitted <==** **----- Start of picture text -----**<br> Amount<br>awarded<br>Compensation on Amount by the Enhancement<br>different heads claimed(Rs.) Tribunal by this Court<br>Rs.<br>Loss of earning (Total) 10,000 7,500 1,500<br>Loss of earning (Partial)<br>Medical and<br>10,000 6,430<br>Miscellaneous expenses<br>Future treatment<br>Bystander expenses 1,500 1,800<br>Transportation 1,000 2,000<br>expenses<br>Extra nourishment 1,000<br>Damage to clothing etc. 500<br>Pain and suffering 20,000 14,000 1,000<br>Disability 42,840 15,480<br>Loss of earning power 12,000<br>Loss of amenities and 60,000 15,000<br>inconvenience<br>10,000<br>Loss of marriage<br>prospects<br>**----- End of picture text -----**<br> MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 15 **==> picture [410 x 235] intentionally omitted <==** **----- Start of picture text -----**<br> Amount<br>awarded<br>Compensation on Amount by the Enhancement<br>different heads claimed(Rs.) Tribunal by this Court<br>Rs.<br>Total 1,04,000 1,11,570 17,980<br>Rounded off to 1,11,600 18,000<br>**----- End of picture text -----**<br> 26. In the result, appeal dismissed and cross objection allowed in part by enhancing compensation to an amount of Rs.18,000/(Rupees eighteen thousand only) which will carry interest @ 7.5% per annum from the date of petition. 2nd appellant/3rd respondent, 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. 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 16 MACA NO. 689 OF 2013 & CO NO. 38 OF 2022 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