M.R. Sisidharan v. Shamir and The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** **MACA NO. 1072 OF 2013** **AGAINST THE AWARD DATED 22.05.2012 MADE IN OPMV 78/2006 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** M.R.SISIDHARAN S/O. RAMANKUTTY, RESIDING AT MUTHANGAPARAMBIL HOUSE, THEKKEPURAM, KUNNAMKULAM, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** 1 SHAMIR S/O. MUHAMMED, RESIDING AT MOOTHEDATH HOUSE, MADHUPULLY, PERINGODU DESOM, THIRUMITTAKKODE VILLAGE, OTTAPPALAM TALUK, PALAKKAD-679 533. 2 THE NATIONAL INSURANCE COMPANY LIMITED BRANCH OFFICE, PRIVATE BUS STAND, EAST NADA, GURUVAYOOR, THRISSUR-680 101. BY ADV SRI.N.S.NAJEEB N.S NAJEEB-R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1072 of 2013 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (M.V) No.78/2006 on the file of Motor Accidents Claims Tribunal, Thrissur. 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 injury sustained by the appellant/claimant (herein after be referred as claimant) in an accident occurred on 3.12.2005 at about 7.15 p.m, due to hit with motorcycle bearing Reg.No.KL.09/R-8869. It is alleged that the accident happened due to the rash and negligent riding of the 1[st] respondent, the owner cum rider of the motorcycle. 2[nd] respondent is the insurer of the offending vehilce. Total compensation of Rs.2,38,450/- has been claimed which was limited to Rs.2,00,000/-. 2. Before the Tribunal, 1[st] respondent remained ex-parte. 2[nd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle. 3. This case has been tried along with O.P (MV) No.84/2006 MACA.No.1072 of 2013 3 and a common award was passed. Exhibits A1 to A108 series were marked from the side of the claimants. Exhibit B1 and B2 were marked from the side of the 2[nd] respondent. Tribunal, on evaluating the pleadings in the claim petition as well as the materials produced, came to a conclusion that the accident happened due to the rash and negligent riding of the offending vehicle by the 1[st] respondent. 2[nd] respondent/insurer held liable to make good the loss sustained by the 1[st] respondent. The Tribunal awarded a total compensation of Rs.1,10,850/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 5. The 2[nd] respondent insurer appeared through Counsel Adv.N.S.Najeeb. Heard the learned counsel for the appellant and also the learned Counsel for the 2[nd] respondent/insurer. Lower court records were called for and perused. 6. According to the learned counsel for the claimant, the MACA.No.1072 of 2013 4 claimant was a Head Constable aged 53 years. The disability certificate certifies 7% permanent disability, but only 6% was taken by the Tribunal. Tribunal awarded meager compensation on all heads, especially towards loss of earnings as well as permanent disability. 7. The learned Counsel for the respondent insurer on the other hand would contend that just and reasonable compensation has already been awarded by the Tribunal on all heads. No documents have been produced by the claimant to prove that he has availed leave due to the accident and resultant injuries sustained. Exhibit A96 salary certificate produced from the side of the claimant would not show that leave was necessitated as per the medical evidence and no separate certificate was also produced to substantiate that leave was necessitated due to the resultant injuries. Hence, according to him, the claimant cannot claim loss of earnings for 9 months as per Exhibit A96. 8. The learned counsel relies on **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** wherein general principles relating to compensation in injury MACA.No.1072 of 2013 5 cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988 (`Act' for short) 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. 9. 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 MACA.No.1072 of 2013 6 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. 10. 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). 11. 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. MACA.No.1072 of 2013 7 12. In this case, the claimant sustained following injuries: Compound fracture both bones of (L) leg upper 1/3, punctured wound left leg middle 1/3, Deformity of (L) leg. The claimant produced two discharge cards, for the period from 14.1.2006 to 31-2-2006. The other one was for the period from 3.12.2005 to 8.12.2005, which was not produced. The wound certificate would show that his admission was on 3.12.2005. So, in view of the nature of injuries sustained, it can safely be inferred that he had undergone inpatient treatment till 8.12.2005. The Tribunal also found that the claimant had undergone total inpatient treatment for 22 days. The Tribunal also found that 5 months loss of earnings can be given to him, but the figure has been taken as Rs.15,000/-. Though, the monthly income has been taken as Rs.11,000/- by the Tribunal, but the amount awarded is only Rs.15,000/-. Exhibit A96 salary certificate would show that salary as on 31.3.2007 was Rs.10,821/-, but in the claim petition the monthly income was shown as Rs.10,600/-. But, no salary certificate as on the date of accident has not been produced, so, monthly income was taken as Rs.10,000/-. In view of the nature of injuries and the period of treatment undergone by him, loss of earnings for 5 months can be MACA.No.1072 of 2013 8 granted. It will come to Rs.10,000x5=Rs.50,000/-. Deducting the amount already awarded, balance would be Rs.35,000/(Rs.50,000-15,000). 13. The next contention is with regard to the compensation awarded under the head of disability. According to the learned counsel for the claimant, after the incident the claimant re-joined on 25.7.2006 and he retired on 31.3.2007. So during that period the claimant was not entitled to get loss of earnings, since, he was getting salary during that period. With regard to the disability Exhibit A6 certifies 12% permanent disability, but the Doctor was not examined. Hence, the learned Standing Counsel for the insurer would contend that the Tribunal rightly taken the disability at 6% and that can be followed here also. The disability certificate as well as the discharge summary would go to show that the claimant had sustained (1) Malunited fracture left tibia upper 3[rd] with 20[0] varus angulation and 1” shortening of left leg segment an patient has limping on left side – 5%. (2) Hyper trophic callus over left upper tibia with acute tenderness over the tibial fracture site with 10[0] anterior angulation of tibia – 3%. (3) Partial ankylosis of left knee MACA.No.1072 of 2013 9 with painful limitation of left knee flexion beyond 90[0] - 3%. (4) Partial ankylosis of left ankle with no dorsiflexion of left ankle and inability to squat – 3%. So, the Doctor certified total physical disability at 12%. The claimant had undergone 22 days inpatient treatment and second inpatient treatment was within one month. So taking into account the nature of injuries and age of the claimant ie. 53 years at the time of accident, there is no possibility for further improvement. So disability certificate Exhibit A6 has been marked without any objection before the Tribunal and if at all the Tribunal had any doubt with regard to the genuineness of Exhibit A6 certificate as per **Raj Kumar** the Tribunal ought to have referred the patient to Medical Board. Without doing that the Tribunal has unilaterally taken the disability at 6%, which is not seems to be just and reasonable. 14. In view of the facts and circumstances, especially taking into account the age of the claimant, I am of the view that permanent disability can be taken at 10%, since it is assessed by the Doctor, who is the Associate Professor and Orthopedic Surgeon attached to Department of Orthopedic Medical College, Thrissur. MACA.No.1072 of 2013 10 The disability suffered is 10% only. He can perform his daily chores without the help of others. There will not be any loss of earnings since he continued in service. But the injuries and the disability caused will reduce his opportunity to take up post retirement employment. Hence some amount has to awarded on that account towards loss of future earning with respect to post retirement period. The accident was in the year 2005. So taking the income notionally as Rs.5,000/- as per **Ramachandrappa v. Manager,** **Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the claimant is enabled to get Rs.54,000/towards future loss of earning. Deducting the amount already awarded the balance would be 54,000–35280=18,720/-. Compensation awarded by the Tribunal under other heads are seem to be just and reasonable. So, the claimant is entitled to get enhanced compensation of Rs.35,000+18,720=53,720/- rounded to Rs.53800/-. 15. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.53,800/- (Rupees Fifty three Thousand Eight Hundred only)** which will carry interest @ 7.5% MACA.No.1072 of 2013 11 per annum from the date of petition excluding the period of delay of 202 days in filing the appeal. The 2nd respondent, Insurance Company, 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. 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