Mathaikutty v. Abraham Mathew and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 MACA NO. 854 OF 2011** **AGAINST THE COMMON AWARD DATED 24.6.2009 IN OPMV 915/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/PETITIONER:** MATHAIKUTTY AGED 54 YEARS, S/O.DAVID, THADATHKALAYIL HOUSE,PALLIKUTH (PO), CHUNGARATHARA AMSOM, NILAMBUR TALUK. BY ADV SRI.NOBLE MATHEW ## **RESPONDENTS/RESPONDENTS:** 1 ABRAHAM MATHEW AND OTHES NEDUMPARAMBIL HOUSE, PALLIKUTH (PO), CHUNGATHARA (DRIVER), 679 334 2 JAYASREE W/O.RAVINDRANATH VALLANCHIRA HOUSE, NILAMBUR ROAD, MANJERI (PO), (OWNER), 676 121 3 NATIONAL INSURANCE CO.LTD. MIDDLETEN STREET, POST BOX NO.9229, KOLKATTA (PO), (INSURER), 695 542 BY ADVS. R.AJITH KUMAR (128/84) SRI.P.SAMSUDIN SRI.VARMA AJIT-R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No.854 of 2011 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV) No.915/2005 on the file of Motor Accidents Claims Tribunal, Manjeri. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant in a motor accident occurred on 26.1.2005 at about 4.30 p.m., while the appellant/claimant was travelling in a bus bearing registration No.KL12/B 3441 from Chungathata to Pallikuth, and reached Muttikkadavu bridge near Chungathara, the driver of the bus lost control over the vehicle and it overturned to the river and the appellant sustained grievous injuries. Immediately, he was taken to District Hospital, Manjeri and PG Medical Trust Hospital, Nilambur and undergone treatment there. It is alleged that the accident happened due to the rash and negligent driving of the 1st respondent. 2nd respondent is the owner of the offending vehicle. 3rd respondent is the insurer of the offending vehicle. Total compensation of Rs.1,50,000/- has been claimed. 2. The 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle. The 1[st] and 2[nd] respondents did not file any written statement. The MACA.No.854 of 2011 3 claimant was put to strict proof regarding the averments in the claim petition with regard to the income and occupation. 3. This case was tried with O.P.(MV) No.914/05, which was filed by the wife of the claimant herein. Exhibits A1 to A5 series were marked from the side of the claimant. Ext.X1 disability certificate was also marked. There was no oral evidence from either side. Tribunal on evaluation of the pleadings and other materials found that the accident happened due to the rash and negligent driving of the bus by the first respondent. 4. The 3[rd] respondent insurer was held liable to make good the loss sustained by the 2[nd] respondent owner of the vehicle. Total compensation of Rs.1,04,621/- in total was awarded. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, appellant/claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 6. 1[st] and 2[nd] respondents appeared through counsel. 3[rd] respondent appeared through the learned Standing Counsel Adv.Varma Ajith. Lower court records were called for and perused. Both sides were heard. 7. The findings with respect to the negligence on the part of MACA.No.854 of 2011 4 the 1[st] respondent and the liability of 3[rd] respondent are not under challenge. The only dispute is with regard to the quantum of compensation awarded by the Tribunal. 8. The compensation awarded by the tribunal under various heads are as follows: **==> picture [320 x 421] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>Transport to the hospital 2,000-00<br>Damage to clothing 250-00<br>Extra nourishment and 200-00<br>bystanders expenses<br>For review (16 times) 1,600-00<br>Pain and suffering 15,000-00<br>Medical bills 12,071-00<br>For loss of income of three 7,500-00<br>months @ Rs.2,500/-<br>For disability 66,000-00<br>(30,000x20x11/100<br>Total 1,04,621-00<br>**----- End of picture text -----**<br> 9. According to the learned counsel, the appellant/claimant (herein after be referred as claimant) was 48 years old at the time MACA.No.854 of 2011 5 of accident and he was a rubber tapper and his monthly income is Rs.4,500/-. The claimant did not adduce any evidence to prove the actual income. The Tribunal notionally fixed his income as Rs.2,500/- per month which is very low. 10. In **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that 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]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-082008. Claimant was a vegetable vendor aged about 24 years who MACA.No.854 of 2011 6 sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in Ramchandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 12. Claimant in this case was aged 48 years at the time of accident and he is a rubber tapper. So, as per the principles laid down in the above decisions, Rs.4,500/- claimed by the claimant as the monthly income is reasonable and is hereby accepted. 13. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** the 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 MACA.No.854 of 2011 7 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 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. 14. 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). 15. 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. In cases of serious injuries, where there is specific MACA.No.854 of 2011 8 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). 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, the claimant undergone inpatient treatment for 2 days. As per the wound certificate the claimant has sustained Contusion (L) hemotherax and Intervertebral disc prolapse L5-S1. The Medical Board issued disability certificate certifying that he has permanent partial disability of 20%. 17. So, taking into account the facts and circumstances, 3 months loss of earnings taken by the Tribunal is seems to be MACA.No.854 of 2011 9 reasonable. So, that can be re-fixed as Rs.4,500x3=Rs13,500/-. Deducting the amount already awarded the balance would be Rs.6,000/- (Rs.13,500-7,500). 18. Claimant was 48 years old at the time of incident. The proper multiplier 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 Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '13'. The Tribunal wrongly took the multiplier as '11'. Towards permanent disability, the claimant is entitled to get Rs.4,500 x 12 x 13 x 20/100=Rs.1,40,400/-. Deducting the amount already awarded by the Tribunal the balance would be Rs.74,400/- (Rs.1,40,400 -66,000). In view of permanent disability, as per **Raj Kumar** the claimant is also entitled to get compensation towards the loss of amenities. In view of the fact, that there is permanent partial disability at 20% certified by the Medical Board an amount of Rs.10,000/- can be awarded towards loss of amenities also. There is no dispute with regard to compensation awarded under other heads. So the claimant is entitled for the enhanced compensation of Rs.90,400/- (Rs.74,400+ 6,000 + 10,000). MACA.No.854 of 2011 10 19. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.90,400/(Rupees ninety thousand four hundred only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the **date of petition on 17.5.2005** till realisation excluding 595 days, the delay caused in filing this appeal. The 3[rd] respondent is directed to pay the additional compensation granted in this appeal, together with interest, deducting the amount towards balance court fee within a period of two months from the date of receipt of certified copy of this judgment. The appellant 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 learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Sd/- ## **M.R.ANITHA JUDGE** SMF