MACA NO. 2152 OF 2012

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944 MACA NO. 2152 OF 2012** **AGAINST THE AWARD DATED 29.5.2012 IN OPMV 393/2009 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANT/CLAIMANT:** SURESH AGED 37 YEARS S/O.LATE RAGHAVAN, NELLIKUNCHI HOUSE, P.O.KASARAGOD, NOW R/AT SREEKRISHNA ROAD, R.D.NAGAR P.O., KASARAGOD TALUK AND DISTRICT. BY ADV SMT.R.PADMAKUMARI ## **RESPONDENTS/RESPONDENTS:** 1 SURESH M S/O.MEENAKSHI.H., VELLERIKKAYA HOUSE, PANDI, NEAR KATTIPPARA LPS, DELAMPADY P.O., DELAMPADY VILLAGE, KASARAGOD DISTRICT-671 543. 2 ABDUL JALEEL.C.H. S/O.C.H.AHAMMED, R/AT.C.H.HOUSE, CHEMNAD P.O., KASARAGOD - 671 321. 3 THE BRANCH MANAGER M/S.ORIENTAL INSURANCE CO.LTD., CITY POINT BUILDING, PRESS CLUB JUNCTION, M.G.ROAD, KASARAGOD. BY ADV SRI.M.JACOB MURICKAN ADV.SRI. M. JACOB MURICKAN - R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.2152 OF 2012 2 ## **JUDGMENT** Dated this the 27[th] day of May, 2022 This appeal has been filed against the award passed in O.P.(M.V) No.393/2009 on the file of Principal Motor Accidents Claims Tribunal, Kasaragode (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation due to the injury sustained by the appellant/claimant (hereinafter be referred as the claimant). 2. Accident occurred on 17.12.2008 at about 6.40 p.m., while the claimant was walking through the side of National Highway at Anangoor, due to hit by omni van bearing Reg.No.KL-14C-5891. The claimant sustained grievous injuries. It is alleged that accident happened due to the rash and negligent driving of the 1[st ] respondent. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. Claim is for a total amount of Rs.4,06,000/- which is limited to Rs.4,00,000/-. 3. Before the Tribunal, respondents 1 and 2 remained ex- MACA NO.2152 OF 2012 3 parte. 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence attributed against 1[st] respondent is denied. 4. Exhibits A1 to A5 and X1 marked from the side of the claimant. There was no oral evidence from either side. Tribunal on evaluating the pleadings and documents, came to a conclusion that 1[st] respondent is responsible for the accident. 2[nd] respondent is held vicariously liable for the acts of the 1[st] respondent. The 3[rd] respondent/insurer is directed to indemnify the 2[nd] respondent. The Tribunal awarded a total compensation of Rs.3,22,000/-. 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. Service of notice as against respondents 1 and 2 is dispensed with at the risk of the appellant. Adv.Jacob Murickan, appeared on behalf of the 3[rd] respondent/insurer. Heard the learned counsel for the claimant and also the learned counsel for the MACA NO.2152 OF 2012 4 3[rd] respondent/insurer. Lower court records were called for and perused. 7. According to the learned counsel for the claimant, the claimant was a cleaner aged 34 years. He claimed monthly income of Rs.7,000/-. But the Tribunal taken the income notionally as Rs.4,000/-, which according to him is very low. She would also contend that compensation awarded towards pain and suffering, permanent disability etc. are very low. Hence, the learned counsel prays for enhancement of compensation on those heads. 8. The learned counsel for the insurer 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. 9. Accident and liability of the respondent is not in dispute. Challenge is only with regard to the quantum. Though, income of Rs.7,000/- per month has been claimed, no evidence whatsoever has been adduced to prove the income. In **Ramachandrapa v. Manager,** **Royal Sundaram Alliance Insurance Company Limited [(2011) 13** MACA NO.2152 OF 2012 5 **SCC 236]** , the Hon'ble Apex Court has notionally fixed the monthly income of a coolie in an accident occurred in the year 2004 at Rs.4,500/-. 10. In the present case, since the claimant was 34 years old and the accident was in the year 2008, monthly income can be taken as Rs.6,500/-. 11. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** 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 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 MACA NO.2152 OF 2012 6 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. 12. 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 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. 13. 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, MACA NO.2152 OF 2012 7 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). 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. 15. In the present case, claimant produced Ext.A3 wound certificate and ExtA4 discharge summary to prove the injuries sustained by him and treatment undergone. Ext.A3 wound certificate would show the following injuries: 1. Lacerated wound, 5cm x 1cm x bone deep, over left side of the back of the head. 2. Abrasion, 5cmx3cm, over front of middle of left leg. 3. CT Scan Head No.18317 shows, MACA NO.2152 OF 2012 8 - a) Sub dural haemorhage over right temporal convexity with mass effect and midline shift. - b) Haemorrhagic contusions over right temporal and parietal lobes. c). Sub arachnoid haemorrhage. Ext.A4 discharge summary would show that he had undergone inpatient treatment from 17.12.2008 to 15.1.2009. Tribunal taken inpatient treatment as 30 days. Ext.A3 wound certificate, Professor and H.O.D. Department of Forensic Medicine, A.J. Institute of Medical Sciences, Mangalore, certified that injuries Nos.3(a), 3(b) & 3(c) are grievous in nature. 16. Ext.X1 disability certificate issued by the Medical College Hospital, Calicut, certified 25% permanent whole body disability. So, from the nature of injuries and period of treatment as well as the procedures of treatment undergone by the claimant, the loss of earnings for 4 months awarded by the Tribunal can be maintained. Monthly income has already been taken as Rs.6,500/-. Hence, loss of earning can be re-fixed as Rs.26,000/- (Rs.6,500x4). Deducting the amount already awarded, balance would be Rs.10,000/- (Rs.26,000- MACA NO.2152 OF 2012 9 16,000). 17. According to the learned counsel for the claimant, the claimant had undergone 30 days inpatient treatment but only Rs.6,000/- ie. @ Rs.200/- per day, has been awarded by the Tribunal towards bystander expense. The accident was in the year 2008, hence Rs.250/- per day can be taken as bystander expense. Hence, towards bystander expenses, claimant is entitled to get Rs.7,500/(Rs.250x30). Deducting the amount already awarded the balance would be Rs.1,500/- (Rs.7,500 -6,000). 18. Towards pain and suffering only Rs.15,000/- has been awarded by the Tribunal, taking into account the grievous nature of injuries sustained by the claimant as well as the period of inpatient treatment undergone by him, an amount of Rs.25,000/- towards pain and suffering is seems to be just and reasonable. Hence, towards pain and suffering the claimant is entitled to get enhanced compensation of Rs.10,000/- (Rs.25,000-15,000). 19. According to the learned counsel for the claimant, no MACA NO.2152 OF 2012 10 amount has been awarded towards loss of amenities. But Tribunal awarded Rs.25,000/- towards loss of earning power and another Rs.1,92,000/- towards permanent disability. Award of compensation towards permanent disability is on account of future loss of earning power. Hence there is duplication of compensation in awarding under both heads. So Rs.25,000/- awarded towards loss of earning power can be adjusted towards loss of amenities. 20. Next is with regard to compensation towards permanent disability. 25% of permanent disability certified in Ext.X1 has been accepted by the Tribunal for computing compensation towards permanent disability. That can be approved in view of the serious nature of injuries and procedures of treatment undergone by the injured. Monthly income of the claimant has already been taken as Rs.6,500/-. Claimant was 34 years old at the time of accident. The proper multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v.** **Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in **National** MACA NO.2152 OF 2012 11 ## **Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662** **(SC)]** is '16'. Re-fixing the amount towards permanent disability, the claimant would be entitled to get Rs.6,500 x 12 x 16 x 25/100 = Rs.3,12,000/-. Deducting the amount already awarded, balance would Rs.1,20,000/- (Rs.3,12,000-1,92,000). Hence, the claimant is entitled to get enhanced compensation of Rs.1,41,500/- (10,000 + 1,500 + 10,000 + 1,20,000). 21. In the result, appeal allowed by enhancing compensation to an amount of **Rs.1,41,500/(Rupees one lakh forty one thousand five hundred only)** which will carry interest @ 6% per annum from the date of petition. The 3rd 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, deducting the amount due towards balance court fee from the claimant. 22. The disbursement of enhanced compensation to claimant shall be made taking note of the law on the point and in terms of MACA NO.2152 OF 2012 12 directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. 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. ## **Sd/-** **M.R.ANITHA JUDGE** SMF