Mahesh s/o Viswanathan Nair v. Viswanathan s/o Karuthakunju; Sosamma Thomas; The Manager, Royal Sundaram Alliance Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944 MACA NO. 1437 OF 2014** **AGAINST THE AWARD DATED 21.02.2014 IN OP(MV) 343/2011 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT/PETITIONER:** MAHESH S/O. VISWANATHAN NAIR, VISHNU BHAVAN @ PARAVILA HOUSE, ROSE MALA, ARIYANKAVU, KOLLAM DISTRICT. BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.MANU TOM ## **RESPONDENTS/RESPONDENTS:** 1 VISWANATHAN S/O. KARUTHAKUNJU, VIJAYABHAVANAM HOUSE, KOTTAIKKUNNU, CHOVALLOOR KARA, KARIPARA, KOLLAM DISTRICT-691 001. 2 SOSAMMA THOMAS W/O. THOMAS, ROSE VILLA, EZHACHERY P.O., VELLILAPPILLY VILLAGE, KOTTAYAM DISTRICT-686 651. 3 THE MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., 21, PATULLOS ROAD, CHENNAI-600 002. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. BY ADV.SRI. P.JACOB MATHEW- R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.1437 OF 2014 2 ## **JUDGMENT** Dated this the 25[th] day of May, 2022 This appeal has been filed against the award passed in O.P. (M.V) No.343/2011 on the file of Motor Accidents Claims Tribunal, Pala (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation out of injury sustained by the appellant/claimant (hereinafter be referred as the claimant). 2. Accident occurred on 16.7.2010 at about 4.20 p.m., while the claimant was travelling in a Scorpio car bearing Reg.No.KL-24/B5454. The 1[st] respondent was driving the car and it hit against KL-3/E4909 scooter. Thereafter, the car hit against the bus bearing Reg.No.KL-23/4001. 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. The claim is for a total amount of Rs.9,00,000/-. 3. Before the Tribunal, 1[st] and 2[nd] respondent remained ex- MACA NO.1437 OF 2014 3 parte. 3[rd] respondent/insurer alone filed written statement admitting the policy coverage with respect to the offending vehicle. 4. PW1 examined. Exhibits A1 to A14 and X1 marked from the side of the claimant. There was no evidence from the side of the 3[rd] respondent. Tribunal on evaluating the evidence, facts and circumstances, came to a conclusion that the accident happened due to the rash and negligent driving of the 1[st] respondent. 2[nd] respondent is held vicariously liable for the acts of the 1[st] respondent. 3[rd] respondent/insurer is held liable to indemnify the insured. The Tribunal awarded a total compensation of Rs.2,09,800/-. 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 is complete as against 1[st] respondent. Notice as against 2[nd] respondent is dispensed with. Adv.P.Jacob Mathew, appeared on behalf of the 3[rd] respondent. Heard the learned counsel for the claimant and also the learned Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. MACA NO.1437 OF 2014 4 7. According to the learned counsel for the claimant, the claimant was a autorickshaw driver, aged 22 years. He claimed monthly income of Rs.10,000/- and he has given evidence as PW1 and deposed about his occupation and income. But Tribunal taken the income notionally as Rs.5,000/-, which according to him is very low. He would also contend that the claimant sustained very serious injuries involving three fractures and he had undergone inpatient treatment for 32 days. Medical Board certified 25.96% permanent whole body disability. But the Tribunal arbitrarily reduced the disability to 10%. 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. The claimant though claims to be a driver, driving licence to establish that fact has not been produced. Though claimant is examined as PW1 and deposed that he is a driver and his monthly income is Rs.10,000/-. Ext.X1 disability certificate issued by the Medical Board would state his occupation as welder. There is no MACA NO.1437 OF 2014 5 convincing materials to prove the actual income also. In the above circumstances, Tribunal rightly taken notional income. But the question is whether Rs.5000/-per month taken is just and proper. 10. In **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court has notionally fixed the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. In **Syed Sadiq v.** ## **Divisional manager, United India Insurance Co. Ltd. [(2014) 2** **SCC 735]** the Apex Court taken the monthly income of a vegetable vendor as Rs.6,500/- per month, in an accident occurred in the year 2008. 11. In the present case, since the claimant was 22 years old and the accident was in the year 2010, monthly income notionally can be taken as Rs.7,500/-. 12. 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 MACA NO.1437 OF 2014 6 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 conjectures 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. 13. 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, MACA NO.1437 OF 2014 7 suffering and trauma as a consequence of the injuries. 14. 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). 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. In the present case, claimant produced Exts.A8 to A10 medical records. Ext.A8 copy of wound certificate issued from General Hospital, shows Fracture of femur right leg. In Ext.A9 discharge card, MACA NO.1437 OF 2014 8 issued from Medical College Hospital, Kottayam, the injuries are noted as: Fracture shaft of right femur, fracture distal end of radius right and bimalleolar fracture of left leg. He had undergone surgery on 30.7.2010, details noted as open interlocking nail for shaft of femur and open reduction and internal fixation for medial malleolus fracture. He had undergone inpatient treatment for 32 days. Ext.X1 is the disability certificate issued by the Medical Board certifying 25.96% whole body disability. 17. According to the learned counsel for the claimant, the Medical Board assessed 25.96% whole body disability, but the Tribunal taken disability at 10%, for the reason that claimant did not take any steps to prove the disability certificate. As per **Raj Kumar,** if the disability certificates are given by duly constituted Medical Board, it can be accepted subject to evidence regarding the genuineness of the certificates. If the Tribunal has any doubt with regard to the genuineness of the medical evidence,he could have examined any of the members of the Board. Without doing that unilaterally refusing to accept certificate in toto, issued by the Medical Board is illegal and improper and is not sustainable in law. Hence taking into account the MACA NO.1437 OF 2014 9 serious nature of injuries sustained by the claimant, procedures of treatment undergone by the claimant, permanent disability certified by the Medical Board at 25.96% is hereby accepted. 18. According to the learned counsel for the claimant, the claimant sustained very serious injuries and undergone inpatient treatment for 32 days. He had undergone three surgeries. But loss of earning for 4 months alone has been awarded by the Tribunal. Taking into account the nature of injuries and period of treatment as well as the procedures of treatment undergone by the claimant, loss of earning for 6 months can be awarded. That would come to Rs.45,000/- (Rs.7,500x6). Deducting the amount already awarded balance would be Rs.25,000/- (Rs.45,000-20,000). 19. The claimant has been to hospital on several times. Tribunal awarded Rs.6,000/- as transportation charges. An amount of Rs.1,000/- further is awarded towards transportation charges. 20. Towards extra nourishment, Tribunal awarded Rs.2,000/-. In view of the fact that he had undergone 32 days inpatient treatment. Rs.1,200/- is further awarded towards extra nourishment. MACA NO.1437 OF 2014 10 21. According to the learned counsel for the claimant, the claimant had undergone 32 days inpatient treatment but only Rs.5,800/- ie. @ Rs.200/- per day, has been awarded by the Tribunal towards bystander expense. The accident was in the year 2010, hence Rs.250/- per day can be taken as bystander expense. Hence, towards bystander expense the claimant is entitled to get Rs.8,000/(Rs.250x32). Deducting the amount already awarded the balance would be Rs.2,200/- (Rs.8,000-5,800). 22. Monthly income of the claimant has already been taken as Rs.7,500/-. The claimant was 22 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 Constitution Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '18'. Re-fixing the amount towards permanent disability, the claimant is entitled to get Rs.4,20,552/- (Rs.7,500x12x18x25.96/100). Deducting the amount already awarded balance would be Rs.3,12,552/(Rs.4,20,552-1,08,000). Towards pain and suffering as well as loss of MACA NO.1437 OF 2014 11 amenities reasonable amount has been awarded by the Tribunal. So the claimant is entitled to get enhanced compensation of Rs.3,41,952/- rounded off to Rs.3,42,000/- (3,12,552 + 25,000 + 1,200 + 1,000 + 2,200). 23. In the result, appeal allowed by enhancing compensation to an amount of **Rs.3,42,000/(Rupees three lakhs forty two thousand only)** which will carry interest @ 6% per annum from the date of filing the 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. 24. The disbursement of enhanced compensation to appellant/claimant shall be made taking note of the law on the point and in terms of 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 MACA NO.1437 OF 2014 12 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