Mohiudheen v. K.K. Saidalavi and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943** ## **MACA NO. 1743 OF 2009** **(AWARD IN OPMV 882/2005 OF THE PRINCIPAL ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE DATED 28TH DAY OF APRIL, 2009)** ## **APPELLANT/PETITIONER IN THE O.P.(MV):** **MOHIYUDHEEN, S/O AHAMMED HAJI, AGED 44 YEARS URANIYAN HOUSE, P.O.THIRURANGADI, EAST BAZAR, MALAPPURAM DISTRICT, NOW RESIDING AT PALAKKAL HOUSE, P.O.ARAKKINAR, KOZHIKODE.** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENT/RESPONDENTS IN THE OP(MV):** - **1 K.K. SAIDALAVI, S/O MOHAMMED, LATHEEF MANZIL, CHEMMAD, MALAPPURAM DISTRICT.** - **2 THE ORIENTAL INSURANCE CO. LTD DIVISIONAL OFFICE-II, PRAMODTH BUILDING, CHEROOTTY ROAD, CALICUT.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1743 of 2009 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.882/2005 on the file of Motor Accidents Claims Tribunal, Kozhikode. 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/claimant in a motor accident. 2. It is alleged that while he was travelling on the pillion of motorcycle bearing No.KL-10-N-1726, the vehicle overturned and appellant sustained injuries. The accident happened due to the rash and negligent riding of the motorcycle by the 1[st] respondent. 2[nd] respondent is the insurer of the vehicle. Total compensation of Rs.2,00,000/- has been claimed. 3. Before the Tribunal 1[st] respondent remained ex-parte. 4. The 2[nd] respondent/Insurance Company filed written statement admitting the policy coverage with respect to the offending vehicle. The liability of the company would be subject to the terms and conditions of the policy issued. 5. Exhibits A1 to A5 were marked from the side of the appellant/claimant. Exhibit B1 the copy of the policy produced from MACA.No.1743 of 2009 3 the side of the respondent. 6. The Tribunal after evaluating the documents and pleadings passed an award of Rs.28,500/- in total. It is also found that the insurer/2[nd] respondents not liable since it was only a package policy. Hence, 1[st] respondent the owner cum rider of the motorcycle was held liable. 7. Dissatisfied with the award passed by the Tribunal the appellant/claimant (here in after be referred as claimant) came up in appeal for the various ground stated in the memorandum of appeal. 8. The 2[nd] respondent insurer appeared through Standing Counsel Adv.K.S.Santhi. Liability is admitted by the /2nd respondent/insurer. Hence, service of notice on the 1[st] respondent is dispensed with at the risk of the appellant. Lower court records were called for and perused. Both sides were heard. 9. Though, there is a finding by the Tribunal that the insurer is not liable for the package policy, it is fairly conceded by the learned counsel for the insurer that package policy covers the pillion rider also and in effect the liability of the insurer is admitted. So the only point for determination is with respect to the quantum of compensation awarded by the Tribunal. MACA.No.1743 of 2009 4 ## 10. Compensation awarded by the tribunal under various heads are as follows: **==> picture [320 x 295] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>Medical Treatment 7,000-00<br>Incidental charges 3,000-00<br>Pain and suffering 10,000-00<br>Loss of notional income 5,000-00<br>Loss of amenity 3,000-00<br>Transportation 500-00<br>Total 28,500-00<br>**----- End of picture text -----**<br> 11. According to the learned counsel for the claimant, the claimant was a worker in a hotel at abroad and claimed monthly income of Rs.15,000/-, but it could not be proved. The learned counsel fairly conceded that the income and occupation could not be proved. However, the accident occurred on 28.3.2005. 12. 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 MACA.No.1743 of 2009 5 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. 13. 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 14-08-2008. Claimant was a vegetable vendor aged about 24 years who 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 MACA.No.1743 of 2009 6 vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 14. Claimant was 40 years old at the time of accident. So, taking into account the facts and circumstances, his monthly income can notionally be fixed as Rs.5,000/- per month. 15. 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 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. MACA.No.1743 of 2009 7 16. 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). 17. In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been enumerated. 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 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 MACA.No.1743 of 2009 8 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. 18. Exhibit A2 is the copy of the wound certificate. The claimant sustained a lacerated wound 1x1 cm on forearm and fracture of both bones forearm. Exhibit A4 is the discharge card which proves that the claimant had undergone treatment from 28.3.2005 to 05.4.2005. He had undergone inpatient treatment for 8 days. 19. According to the learned counsel, in view of the serious nature of injuries sustained by the claimant at least three months loss of earnings ought to have been awarded. It is also his contention that though the medical bills for Rs.30,516/- has been produced, the Tribunal awarded only Rs.7,000/- towards expenses. Enhancement of amount also sought under other heads. 20. Evaluating the nature of injuries and the period of treatment undergone by the claimant, the **loss of earnings** can be computed for three months, it will come to Rs.15,000/(Rs.5,000x3). Deducting the amount already awarded balance MACA.No.1743 of 2009 9 would be **Rs.10,000/-** (Rs.15,000-5,000). On perusing the medical bills produced as Exhibit A5 series, it could be seen that the original medical bills issued from M.K.Haji Orphanage Hospital, Tirurangadi. Exhibit A2 the wound certificate would go to show that he had undergone treatment in the very same hospital. I do not find any justification in refusing to accept the medical bills, which are produced in original. Towards **medical expense** the claimant is entitled to get an amount of Rs.30,516/- as sought for as covered by Exhibit A5 series. Deducting the amount already awarded, balance would be **Rs.23,516/-** (Rs.30,516-7,000). Nature of injuries and the period of treatment would also go to show that there would be some discomfort or inconvenience to the claimant due to the injuries sustained by him and an amount of Rs.10,000/can be awarded towards **loss of amenities** . Deducting the amount already awarded the balance would be **Rs.7,000/-** (Rs.10,0003,000). Towards pain and suffering the Tribunal awarded Rs.10,000/-, which according to the learned counsel is very low. In view of the injuries and nature of treatment undergone by the claimant an amount of Rs.15,000/- can be awarded towards **pain and suffering** . Deducting the amount already awarded the balance would be **Rs.5,000/-** (Rs.15,000-10,000). So, the claimant is MACA.No.1743 of 2009 10 entitled to get the total enhanced compensation of Rs.45,516/(Rs.10,000+23,516+7,000+5,000) rounded of to Rs.45,500/-. 21. In the result, the appellant/claimant will be entitled for enhanced compensation of **Rs.45,500/- (Rupees forty five thousand five hundred only)** in this appeal, which will carry interest at the rate of **7.5%** per annum. Respondent No.2 is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a 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