M.A.C.A No. 1582 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943** ## **MACA NO. 1582 OF 2013** **AGAINST THE AWARD IN OPMV 552/2008 DATED 06.12.2011 OF MOTOR ACCIDENTS** ## **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **O.P.JAYAPRAKASH AGED 31 YEARS SON OF O.P SEKHARAN,ORAPAAKAD PARAMBA HOUSE,NELLAYA VILLAGE,EZHUVANTHALA,OTTAPALAM TALUK,PALAKKAD DISTRICT BY ADVS.** **SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI PARIYARATH** ## **RESPONDENTS/RESPONDENTS:** - **1 T K CHANDRAN S/O.KRISHNAN NAIR,VADAKKE THALIKAD HOUSE,ETANELLUR VILLAGE,ANCHALPETTY DESOM,MOOVATTUPUZHA,ERNAKULAM DISTRICT (DRIVER OF BUS BEARING REG.NO KL-7/AH-1712) 686 661** - **2 V.K.SREEKUMAR, S/O KRISHNAN NAIR, 48 YEARS OF OLD, VATTAPRAMBIL HOUSE,PO. DESOM,ALUVA-3,ERNAKULAM DISTRICT (R.C OWNER OF BUS BEARING REG.NO KL-07/AH-1712)** - **3 NATIONAL INSURANCE COMPANYLIMITED LIMITALUVA,(INSURER OF BUS BEARING REG.NO KL-07/AH-1712) POLICY NO 571000/31/06/6300007705 VALID FROM 22-02-2007 TO 21-02-2008 683103** - **4 RAMAKRISHNAN, AGED 52 YEARS, S/O.KUNHAN, NARANGAPARAMBIL HOUSE, EZHUVANTHALA,P.O NELLAYA (VIA),OTTAPALAM TALUK (DRIVER OF CAR BEARING REG NO KL-09/T2095)679101** - **5 P.K.SAINUDHEEN AGED 39 YEARS** - **S/O.HYDER HAJI (LATE) 4/360-A PARAMKANDATH VEEDU, P.O.AMALAVATTOM,PANAMANNA,OTTAPALAM TALUK 679 101** - **6 NATIONAL INSURANCE COMPANY LIMITED KOLLANNUR DEWASY SMARAK BUILDING, THRISSUR 680001 (INSURER OF CAR BEARING REG.NO KL-09/T 2095 BY ADVS. SRI.K.B.ARUNKUMAR SMT.RAJI T.BHASKAR SRI.M.P.SHAMEEM AHAMED** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1582 of 2013 **2** ## **M.R.ANITHA, J.** ## **----------------------------------------M.A.C.A No. 1582 of 2013 ----------------------------------------** Dated this the 03[rd] day of February, 2022 ## **JUDGMENT** The appellant is the claimant in O.P.M.V No.552/2008 on the file of Motor Accidents Claims Tribunal, Ottappalam for the injuries sustained to the appellant in a motor vehicle accident occurred on 23.09.2007. The appellant claimed a total compensation of Rs.4,35,000/-. 2. It is alleged that on 23.09.2007, while the appellant/claimant (here in after be referred as claimant) was traveling in a maruthi car bearing No.KL9/T 2095 driven by the 4[th] respondent through Kuttipuram-Kunnamkulam public road, a bus bearing No.KL7 AH-1712 driven by the 1[st] respondent came in a rash and negligent manner from the opposite direction and hit against the maruthi car, thereby the claimant sustained serious injuries. Immediately he was taken to West Fort Hi-Tech Hospital, Thrissur and there he undergone treatment for 10 days. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent, the driver of the M.A.C.A No. 1582 of 2013 **3** offending vehicle. The 2[nd] respondent is the owner of the bus. 3 **[rd]** respondent is the insurer **.** Respondents 4 to 6 are the driver, owner and insurer of the car in which the claimant was traveling. 3. Before the Tribunal, the 4[th] respondent filed written statement admitting the policy coverage with respect to car and denying allegations including negligence attributed against the driver of the car. The age, income and occupation of the claimant are disputed and further contended that claims under various heads are excessive. An additional written statement also filed by 3[rd] and 6[th] respondent contending that the car involved in the accident was going from south to north and the bus coming from north to south through KuttipuramKunnamkulam public road. As per scene mahazar, the car was on the wrong side and the bus was on the correct side. So, driver of the car was negligent and the 3[rd] respondent, the insurance company of the bus is not liable. It is also contended that the 5[th] respondent, who is the RC owner of the car rented out the car, which is not covered by the policy issued to 5[th] respondent and hence, the insurance company is not liable to indemnify the 5[th] respondent. 4. This claim petition was jointly tried along with four other cases and common award was passed. One of the injured in the M.A.C.A No. 1582 of 2013 **4** connected matter was examined as PW1 and Ext.A1 to A10 were marked from the side of the claimant in this case. Exts.B1 to B5 were marked and RW1 examined from the side of the respondent. 5. After evaluating pleadings and evidence from both sides, the Tribunal awarded a total compensation of Rs. 89,800/-. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant came up before this Court in appeal for the various grounds stated in the memorandum of appeal. Heard the learned Standing Counsel for the 3[rd] respondent as well as the learned counsel for the appellant. Since the 3[rd] respondent admitted the policy coverage with respect to the offending vehicle, notice as against other respondents was dispensed with. Lower court records were called for and perused. 7. The finding with regard to the negligence as well as liability cast upon the 3[rd] respondent is not in dispute. The issue is with regard to the quantum of compensation awarded by the Tribunal under various heads. According to the learned counsel, the claimant is a Carpenter. His monthly income notionally fixed as Rs.3,000/- per month is very low. It is also contended that the compensation awarded towards pain and suffering, loss of amenities, Transportation expenses M.A.C.A No. 1582 of 2013 **5** and bystander expenses are also very low. 8. The learned counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 9. It has been alleged by the claimant that he is a Carpenter. But unfortunately there is no evidence apart from the pleadings in the claim petition that would not constitute evidence and that might have led the Tribunal to fix the monthly income notionally. However, the question is whether the income of Rs.3,000/- per month fixed by the Tribunal since the accident was occurred in the year 2007, is reasonable. 10. 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 M.A.C.A No. 1582 of 2013 **6** 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. 11. 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)** , 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 M.A.C.A No. 1582 of 2013 **7** earning 6,500/- per month. 12. In the present case, accident was in 2007 and the claimant was 27 years old at the time of accident. Hence, I am of the considered view that monthly income of the claimant can notionally be fixed as Rs.6,000/- in view of the principles laid down in the above decisions. 13. Next question is with regard to the quantum of compensation awarded. **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620]** was relied on in this regard. In that, Apex Court has elaborately discussed the general principles 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 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. M.A.C.A No. 1582 of 2013 **8** 14. 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 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 injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 16. Ext.A5 is the discharge certificate dated 09.10.2007 which would show that he had undergone impatient treatment from 23.09.2007 to 05.10.2007 and the injuries noted are “CT headintraventricular bleed lateral 3rd and 4th ventricle of brain and wound debridement and suturing”. Ext.A6 discharge certificate issued from Department of Neuro Psychology also prove that his admission and M.A.C.A No. 1582 of 2013 **9** inpatient treatment from 23.09.2007 to 05.10.2007. It would also show that he was advised to come for review after two weeks. 17. Award would show that an amount of Rs.53,200/- has been granted towards medical expenses and other expenses which would prove to certain extent the gravity of the injury sustained by him. He had undergone inpatient treatment for 12 days. 18. Taking into account the above factors, loss of earning granted for 3 months by the Tribunal is seems to be reasonable and hence towards loss of earning, the claimant is entitled to get 6,000x3=18,000. Deducting the amount already awarded, the balance would be 18,000-9000= **Rs.9,000/-** 19. Towards the by stander expenses, the Tribunal awarded only Rs.2,400/-. It has come out that he had under gone inpatient treatment for 12 days. Rs.250 per day can taken towards the bystander expenses since the accident was in the year of 2007. Hence, under the head of by stander expenses, claimant is entitled to get Rs.3,000/(250x12). Deducting the amount already awarded, the balance would be Rs. **600/-** (3,000-2,400). 20. Towards the transportation expense, the Tribunal awarded Rs.1,000/-. The medical records and the discharge certificate M.A.C.A No. 1582 of 2013 **10** produced from the side of the claimant would prove that he had undergone follow up treatment also. So an amount of Rs. **1,500/-** further can be granted towards Transportation charges. 21. Taking into account the nature of injuries and period of treatment, towards the extra nourishment, an amount Rs.2,000/- can be granted. Deducting the amount already granted, the balance would be Rs. **800/-** (2,000-1,200). 22. Towards damage to clothing, Rs.1,000/- is awarded. Deducting the amount already granted, the balance would be Rs. **500/-** (1,000-500). 23. Towards pain and sufferings, taking into the nature of injuries sustained to the head and treatment undergone including wound debridement, I am of the view that an amount of Rs.20,000/- can be fixed towards the pain and suffering. Deducting the amount already awarded, the balance would be Rs. **5,000/-** (20,000-15,000). Towards loss of amenities, the Tribunal awarded Rs.7,500/-. In view of the nature of the injuries and the period of treatment undergone, I am of the view that Rs **.7,500/-** can be further given towards the loss of amenities. Hence, the claimant is entitled to get an enhanced compensation of **Rs. 23,400/-** (Twenty three thousand four hundred only) M.A.C.A No. 1582 of 2013 **11** (9,000+600+800+500+5,000+7,500). 24. In the result, claimant is entitled to get an enhanced compensation of **Rs.23,400/-** 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. 25. The appeal is filed with a petition to condone delay of 212 days. While condoning the delay by order dated 21.12.2021 in C.M.Appl.No.2/2013 (CMAP.No.1751/2013), 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 212 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 Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. SD/- **M.R.ANITHA JUDGE** rps/