MANOJ.C. v. T.D.FRANCIS & UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943** ## **MACA NO. 2339 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 921/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **MANOJ.C.** **S/O.GOVINDANKUTTY, CHITTATIL HOUSE, THAIKKATTUSSERY, NOW RESIDING AT C/O.JOHN, VAZHAPPILLY HOUSE, ALOOR P.O., MUKUNDAPURAM TALUK. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** **1 T.D.FRANCIS S/O.DEVASSY KUTTY, O/O.A.E.RURAL TNEB, EMARALD, THE NILGIRIS, TAMILNADU - 643 209. 2 UNITED INDIA INSURANCE CO.LTD. CHRISTO BUILDINGS, BANK ROAD, OOTTY - 643 001. BY ADV SRI.P.JACOB MATHEW** ## **OTHER PRESENT:** **SRI.P.JACOB MATHEW-R2** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** ## **17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2339/2012 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV).921/2006 on the file of Motor Accidents Claims Tribunal, Irinjalakuda. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming total compensation of Rs.4,87,000/-, which was limited to Rs.4,50,000/-, on account of the injury sustained by the appellant/claimant in a motor accident. 2. It is alleged that on 27.02.2005 at about 2.30 p.m while the appellant/claimant was travelling as a pillion rider on a motorcycle bearing Reg.No.TN-43/7573 through Sundarapuram – Pollachi road and reached the railway gate No.150, the motorcycle ran over the speed breaker and overturned. Both the riders were thrown out and fell down and the appellant/claimant sustained serious head and other bodily injuries and the rider of the motorcycle died. First respondent MACA No.2339/2012 3 is the owner of the motorcycle and second respondent is the insurer. 3. Before the Tribunal, first respondent remained exparte. Second respondent-insurer filed written statement admitting the policy coverage with respect to the motorcycle bearing Reg.No.TN-43/7573. It is also contended that the appellant is not a third party and the policy does not cover the pillion rider and hence liability of insurer is denied. 4. PWs 1 & 2 examined and Exts.A1 to 10 were marked from the side of the appellant/claimant. Ext.B1 marked from the side of the second respondent. 5. Tribunal on evaluating the evidence and facts and circumstances found that the accident happened due to the rash and negligent riding of the motorcycle by the deceased Rajesh and second respondent was held liable to make good the loss sustained by the first respondent, owner. Ext.B1 policy was found to be a package policy and both respondents were held jointly and severally liable to compensate the appellant. MACA No.2339/2012 4 A total compensation of Rs.2,51,692/- with interest at the rate of 6% p.a. was awarded by the Tribunal. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal appellant/claimant, came up in appeal for the various grounds stated in the memorandum of appeal. 7. Notice to the first respondent is dispensed with at the risk of the appellant/claimant. Second respondent appeared through learned Standing Counsel Sri.P. Jacob Mathew. Lower court records were called for and perused. 8. Heard both sides. 9. According to the learned learned counsel for the appellant/claimant (hereinafter be referred as the claimant), the claimant was Purchase Manager in Joy Alukkas Traders and claimed a monthly income of Rs.5,000/-. But the Tribunal taken the monthly income as Rs.3,000/-, which, according to him, is very low. He would also contend that the compensation awarded under various heads are also very low and hence he MACA No.2339/2012 5 seeks for enhancement on other heads also. 10. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded and no enhancement is required at the instance of this Court. 11. The claimant was examined as PW1. He deposed about the occupation and income. However no document as such has been produced to prove either the income or occupation. In Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court notionally taken monthly income of a coolie aged 35 years who met with an accident in the year 2004 as Rs.4,500/-. Following the principles in Ramachandrappa's case, in Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], while dealing with an appeal, which arose out of an accident occurred in the year 2008, in the case of a vegetable vendor, aged 24 years, the monthly income notionally was taken as Rs.6,500/-. MACA No.2339/2012 6 12. Following the principles in the above settled decisions, Rs.5,000/- claimed as the monthly income by the claimant can very well be accepted since the accident was in the year 2005. Hence monthly income of the claimant is taken as Rs.5,000/-. 13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In cases of serious injuries, where there is specific medical evidence corroborating evidence of claimants, 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). MACA No.2339/2012 7 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. 14. In this case the claimant sustained serious injuries and the learned counsel bring to my attention Ext.A9, the disability certificate, Ext.A3, wound certificate and Ext.X1 discharge summary, to prove the injuries sustained to the claimant. Ext.A3 wound certificate and Ext.X1 discharge summary gives the list of injuries as follows: - “1. Small abrasions over the right side of face. 2. Sutured wound approximately 5 cm over the left parietal scalp region. 3. 'T' shaped sutured wound 3 x 2 cm over right parietal scalp region. 4. Sutured wound 3 cm over centre of parietal scalp region. 5. Sutured wound approximately 4 cm over the centre of occipital region. 6. Sutured wound 3 cm over right side occipital region. MACA No.2339/2012 8 7. Small abrasion over the right side shoulder and right supra scapular region. 8. Abrasion approximately 7 x 3 cm over right elbow posterior aspect. 9. Small abrasions over the knuckles of right hand. 10. Small abrasions over neck posterior aspect.” 15. The diagnoses in Ext.X1 shows (1) fracture C6 spinolaminar process, (2) Head injury – fracture temporal bone (no IC bleed), (3) fracture left clavicle lateral end – nonoperative treatment (4) Right brachial plexus (neuropraxia). CT Scan brain reveals fracture left temporal bones with adjacent mild focal sulcal effacement, to assess with clinical parameters. CT cervical spine reveals fracture C6 spinous process and fracture right transverse process and left lamina C7 vertebra and suggested further assessment with MRI. MRI cervical spine recorded spinal trauma, status evaluation shows spinolaminar at C6 level with focal ALL disruption at C5-C6 level. 16. Ext.A7 disability certificate was marked subject to objection. It was not proved by examining the Doctor. Ext.A9 disability certificate certifying 37.50% of permanent whole- MACA No.2339/2012 9 body disability is accepted by the Tribunal. That is not further challenged also. 17. Question would arise as to whether future prospects can be taken in view of 37.50% of permanent whole-body disability assessed by the Doctor. The learned Standing Counsel objects in taking future prospects and according to him only in cases where permanent disability is 50% and above loss of future prospects can be taken in injury cases. 18. In Jagdish v. Mohan and Ors [(2018) 4 SCC 571] claimant was 24 years of age and 90% earning ability was found and Apex Court took future prospects while computing loss of earning on the ground of disability. 19. In Pappu Deo Yadav v. Naresh Kumar and Ors. [AIR 2020 SC 4424] injured was 20 years of age, Data Entry Operator/Typist disability in relation to right upper limb the extent of permanent disability was assessed at 89%, High Court reduced it to 45%, but Apex Court assessed it at 65% and future prospects at 40% was taken while calculating loss MACA No.2339/2012 10 of earning power. 20. In Erudhaya Priya v. State Express Transport Corporation Ltd. [2020 ACJ 2159] injured was 23 year old Software Engineer suffered fracture of legs and arms, remained hospitalized on 8 occasions for various days over 1½ year and suffered 31.1% permanent disability. Taking disability at 31.1%, 50% awarded for loss of future prospects. 21. The doctor who issued Ext.A9 certificate was examined as PW2. The doctor assessed 37.50% whole-body disability. Tribunal took 37.50% whole-body disability for awarding compensation. PW2 is a retired Orthopedic Consultant, Civil Surgeon Grade I (Rtd.). However the Tribunal has taken 37.50% disability assessed by the doctor for awarding compensation. The claimant in this case had undergone only 13 days inpatient treatment. The permanent whole-body disability at 37.50% has been certified by a single doctor and not by the Medical Board. Medical expenses awarded is Rs.25,842/-. So taking all those factors into account, I am of the considered view that, as rightly contended MACA No.2339/2012 11 by the learned counsel for the respondent this is not a fit case in which the claimant is entitled to get any addition towards future prospects for the permanent disability sustained by him. 22. Claimant was 29 years old. As per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121] the suitable multiplier to be applied is '17'. Hence, under the head of permanent disability, claimant is entitled to get Rs.3,82,500/- [5,000x12x17x37.50/100]. The Tribunal already awarded Rs.1,91,250/-. Deducting that amount, the claimant will be entitled to get Rs.1,91,250/ - [3,82,5001,91,250]. 23. Taking into account the nature of injuries sustained by the claimant, according to the learned counsel, the loss of earnings for two months awarded by the Tribunal is very low. Discharge summary as well as the wound certificate would reveal the serious nature of injuries sustained by the claimant including head injury and hence loss of earnings for six months can very well be granted. So towards loss of earnings, MACA No.2339/2012 12 the claimant will get Rs.30,000/- [5,000x6]. Deducting the amount already awarded, the claimant is entitled to get Rs.24,000 /- [30,000-6,000]. Towards damage to clothing, no amount is seen awarded. So an amount of Rs.500/ - is awarded towards damage to clothing. Bystander's expenses is awarded at the rate of Rs.100/- per day for 13 days. The accident in this case was occurred in the year 2005. Hence towards bystander's expenses Rs.200/- per day can be taken. Accordingly, the claimant will get Rs.1,300/ - under that head [200x13 – 1,300]. Learned counsel would further contend that no amount was awarded towards loss of amenities and conveniences. Taking into account the injuries and the disability sustained by the claimant an amount of Rs.20,000/ - is awarded towards loss of amenities. Learned counsel also claims compensation towards dis-figuration. Claimant was examined as PW1. He speaks about his appearance and disfiguration and the inability to close the mouth etc. So an amount of Rs.5,000/is awarded towards dis-figuration. 24. In the result, the appellant/claimant is allowed to MACA No.2339/2012 13 realise enhanced compensation of Rs.2,42,050/[1,91,250+24,000+500+1,300+20,000+5,000] (Rupees two lakhs forty two thousand and fifty only), which will carry interest at the rate of 7.5 % per annum from the date of petition till realisation. The second respondent-insurer shall satisfy the 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, after deducting the liability of the appellant/claimant towards balance Court Fee. 25. The disbursement of additional 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.D1-62475/2016 dated 07.11.2019. 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, with copy to the learned MACA No.2339/2012 14 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** shg