M.A.C.A No. 2093 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943** ## **MACA NO. 2093 OF 2012** **AGAINST THE AWARD DATED 27.02.2012 IN OPMV 61/2010 OF THE MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANTS/PETITIONERS 2 TO 11:** |**1**|**AYISHA**| |---|---| ||**AGED 57 YEARS**| ||**D/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC,**| ||**MEPPADI, MEPPADI POST, WAYANAD DISTRICT.**| |**2**|**MYMOONA**| ||**AGED 54 YEARS**| ||**D/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC,**| ||**MEPPADI, MEPPADI POST, WAYANAD DISTRICT.**| |**3**|**SAINABA**| ||**AGED 52 YEARS**| ||**D/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC,**| ||**MEPPADI, MEPPADI POST, WAYANAD DISTRICT.**| |**4**|**RUKHIYA**| ||**AGED 50 YEARS**| ||**D/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC,**| ||**MEPPADI, MEPPADI POST, WAYANAD DISTRICT.**| |**5**|**JAMEELA**| ||**AGED 48 YEARS**| ||**D/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC,**| ||**MEPPADI, MEPPADI POST, WAYANAD DISTRICT.**| |**6**|**NABEESA**| ||**AGED 46 YEARS**| ||**D/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC,**| ||**MEPPADI, MEPPADI POST, WAYANAD DISTRICT.**| |**7**|**SAIDHALAVI**| ||**AGED 44 YEARS**| ||**S/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC,**| ||**MEPPADI, MEPPADI POST, WAYANAD DISTRICT.**| |**8**|**RAMLA**| ||**AGED 42 YEARS**| ||**D/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC,**| ||**MEPPADI, MEPPADI POST, WAYANAD DISTRICT.**| |**9**|**SUBAIDA**| ||**AGED 40 YEARS**| ||**D/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC,**| ||**MEPPADI, MEPPADI POST, WAYANAD DISTRICT.**| |**10**|**MUNEERA**| ||**AGED 38 YEARS**| M.A.C.A No. 2093 of 2012 **2** **D/O. LATE MUHAMMEDKUTTY, ATTUPURAM HOUSE, NEAR PHC, MEPPADI, MEPPADI POST, WAYANAD DISTRICT. BY ADV SMT.CELINE JOSEPH** ## **RESPONDENT/RESPONDENT NO.2:** **THE BRANCH MANAGER, NATIONALINSURANCE COMPANY LTD. NOOR COMPLEX, NEAR ARAYIDATHUPALAM, MAVOOR ROAD, CALICUT.** **BY ADV SRI.P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2093 of 2012 **3** ## **M.R.ANITHA, J. ----------------------------------------M.A.C.A No. 2093 of 2012 ----------------------------------------** Dated this the 17[th] day of January, 2022 ## **JUDGMENT** This appeal arise out of the award in O.P.M.V No.61/2010 on the file of Motor Accidents Claims Tribunal, Kalpetta. The claim petition, was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) claiming compensation for the injury sustained by the appellant/claimant, Sri Muhammed Kutty, 2. Pending proceedings before the Motor Accidents Claims Tribunal, Kalpetta (here in after be referred as Tribunal), the appellant died and legal heirs have been impleaded as Supplemental petitioners before the Tribunal. The accident alleged to have occurred on 25.04.2009 at about 5.00 p.m., when the injured was walking through the side of the road near Meppadi police station. It is alleged that a car bearing registration M.A.C.A No. 2093 of 2012 **4** No.KL/56/2069 hit him resulting in serious injuries to him. Under various heads, he claimed a total compensation of Rs.1,50,000/-. 3. Before the Tribunal, 1[st] respondent the driver, 2[nd] respondent the owner of the offending vehicle did not contest the case. The 3[rd] respondent insurer filed written statement admitting the policy coverage in respect of the vehicle. The rashness and negligence on the part of the 1[st] respondent is denied. It is alleged that the accident happened due to the negligence of the petitioner in crossing the road. The validity of the documents with respect to the offending vehicle, the driving license of the 1[st] respondent etc is denied. It is also contended that the compensation claimed under various heads are excessive. 4. No oral evidence was adduced from either side. Exts.A1 to A5 were marked from the side of the appellants/claimants. 5. After evaluating the pleadings as well as the materials produced from the side of the appellant/claimant, the Tribunal awarded a total compensation of Rs.23,800/- together with interest at the rate of 7.5% per annum. M.A.C.A No. 2093 of 2012 **5** 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants are before this Court in appeal for the various grounds stated in the memorandum of appeal. The insurer of the offending vehicle alone has been arrayed as respondent. 7. Heard the learned counsel for the appellants/claimants (herein after be referred as claimants) and the Standing Counsel for the respondent insurer. Lower court records were called for and perused. 8. The learned counsel for the claimant would contend that the injured was a coolie earning good income and he suffered serious injuries, but disability could not be assessed since pending the proceedings he died. But the Tribunal awarded only a meagre compensation disproportionate to the loss sustained by the claimants. 9. The learned Standing Counsel for the respondent on the other hand would contend that a just and reasonable compensation has been awarded by the Tribunal and no interference is called for at the instance of this Court. M.A.C.A No. 2093 of 2012 **6** 10. The only dispute between the parties is with respect to the quantum of compensation awarded by the Tribunal under various heads. 11. The accident occurred in the year 2009. The Tribunal fixed monthly income of the injured notionally as Rs.3,000/-. 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 M.A.C.A No. 2093 of 2012 **7** 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. 13. 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 earning 6,500/- per month. M.A.C.A No. 2093 of 2012 **8** 14. In the present case, the deceased was 72 years old and he was a coolie. Having regard to the principle laid down by the Apex Court, the monthly income of the deceased can notionally be fixed as Rs.6,000/-. 15. According to the learned counsel, the compensation awarded under the head of pain and suffering is very low. She also contend that the disability could not be assessed since pending the proceedings in the year 2011 the claimant died and hence, amount has to be fixed notionally towards the loss of future earning capacity by fixing disability notionally by this Court. The learned counsel for the respondent in this context raised serious objection and according to him, without any disability certificate produced from the side of the claimant, no amount can be awarded towards the future loss of earnings by fixing a disability notionally by this Court. I find force in this argument 16. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021), elaborately discussed the general principle relating to compensation in injury cases. In personal M.A.C.A No. 2093 of 2012 **9** 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 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 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). 18. The assessment of non pecuniary damages M.A.C.A No. 2093 of 2012 **10** 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 claim _a_ nt and the effect thereof on the future life of the claimant. 19. The injuries sustained by the claimant in this case is fracture to the neck of humerus. Ext.A5 wound certificate would prove that he had undergone impatient treatment at Leo Hospital, Kalpatta in Wayanad from 25.04.2009 to 08.05.2009 for a period of 14 days. It is contended by the learned counsel forcefully that no medical bills could be produced. However, taking into account the fact that the claimant underwent treatment in a private hospital for 14 days, the Tribunal awarded Rs.500/- towards treatment expenses. In the case of special damages, the claimant has to produce sufficient materials to prove the actual loss sustained. Since no medical bills are produced, the amount of Rs.500/granted notionally by the Tribunal cannot be enhanced. In the absence of any disability certificate produced from the side of the claimant, grant of any amount towards future loss of earnings is M.A.C.A No. 2093 of 2012 **11** also not permissible as per the dictum laid down in **Rajkumar.** However, the fact remains that the injured sustained multiple abrasion knees, scalp and left ear and x-ray right shoulder confirmed fracture of the neck of humerus. He had also undergone impatient treatment for 14 days. So, taking that fact into the account, the amount awarded by the Tribunal under various heads are seems to be insufficient. 20. Towards the 'bystander expenses', the Tribunal awarded only Rs.100/- for 14 days. Since the accident occurred in the years 2009, Rs.250/- per day can be taken towards the 'bystander expenses'. Hence, under the head of 'bystander expenses', claimant is entitled to get Rs.3,500/- (250x14). Deducting the amount already awarded, the balance would be **Rs.2,100/-** (3,500-1,400). 21. The learned counsel would contend that the 'loss of earnings' was awarded only for three months by the Tribunal. He died after two years of accident also. Taking into account the fact that the injured in this case was 72 years old coolie, the loss of earning for six months can be awarded. Therefore, the claimants M.A.C.A No. 2093 of 2012 **12** are entitled to get Rs.6,000 x 6 = 36,000/-. Amount already awarded is to be deducted ie. 36,000-9000, it will come to **Rs.27,000/-** . 22. According to the learned counsel, no amount was awarded by the Tribunal under the head of 'loss of amenities'. In view of the nature of injuries sustained by him as well as the age of the injured, an amount of **Rs.10,000/-** can be awarded towards 'loss of amenities'. 23. Towards 'pain and suffering', the Tribunal awarded Rs.10,000/-. In view of the facts and circumstances, an amount of **Rs.5,000/-** can be additionally awarded towards 'pain and suffering'. 24. In the result, claimants/appellants are entitled to get enhanced compensation of **Rs.44,100/-** (Forty four thousand one hundred only) (21,00+27,000+10,000+5,000) in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. The respondent insurer shall satisfy the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a M.A.C.A No. 2093 of 2012 **13** certified copy of this judgment. Enhanced compensation to be apportioned equally among the claimants/appellants. Appellants/claimants shall provide their 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, with copy to the standing counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. SD/- **M.R.ANITHA** **JUDGE** rps/