Muhammed Sheriff vs Ashok Kumar, Sugandhappan Devaki Mandiram and Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943** ## **MACA NO. 690 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 1264/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **ERNAKULAM** ## **APPELLANT/PETITIONER:** **MUHAMMED SHERIFF AGED 32 YEARS S/O. ABOOBACKER, PUTHUVAYIL, NEAR COCHIN UNIVERSITY, KALAMASSERY. BY ADV SRI.ESM.KABEER** ## **RESPONDENTS/RESPONDENTS:** **1 ASHOK KUMAR S/O. VASUDEVAN, IWNNEPARAMBU, PADINJATTUMKARA SOUTH, THURAVOOR. 2 SUGANDHAPPAN DEVAKI MANDIRAM, WARD-5, PATTANAKKAD, CHERTHALA. 3 THE ORIENTAL INSURANCE COMPANY LIMITED PATTAMANA BUILDING, PUMP JUNCTION, RAILWAY STATION ROAD, ALUVA. BY ADV SRI.VPK.PANICKER** ## **OTHER PRESENT:** **SRI. V.P.K PANICKER-R1** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.690/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.1264/2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation of Rs.12,00,000/-, out of injury sustained to the appellant/claimant in a motor accident occurred on 07.09.2007 at about 10.10 p.m while he was riding a motorcycle bearing Reg.No.KL-7/BA 5530 from Ernakulam to Aluva due to hit by tempo van bearing No.KL-4S 2878 at Kalamassery University junction. 2. It is alleged that the accident happened due to the rash and negligent driving of the first respondent, the driver of the tempo van. Second respondent is the R.C. owner of the offending vehicle and third respondent is the insurer. 3. Before the Tribunal, third respondent alone contested the matter. The policy coverage with respect to the offending vehicle is admitted though negligence as alleged on MACA No.690/2013 3 the first respondent is disputed. 4. Exts.A1 to A10 were marked from the side of the appellant/claimant. There was no oral evidence from either side. 5. On evaluating the pleadings and materials on record the Tribunal found that the accident happened due to the rash and negligent driving of the first respondent and third respondent insurer was held liable to make good the loss sustained by the second respondent and awarded a total compensation of Rs.4,22,434/-. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in appeal for the various grounds stated in the memorandum of appeal. 7. Since the third respondent has admitted the insurance policy, notice to respondents 1 and 2 is dispensed with at the risk of the appellant/claimant. Sri.V.P.K. Panicker appeared on behalf of the third respondent, insurer. 8. Heard the learned counsel for the appellant/claimant MACA No.690/2013 4 rd as well as the learned Standing Counsel for the 3 respondent, insurer. Lower court records were called for and perused. 9. According to the learned counsel for the appellant, the appellant/claimant (hereinafter be referred as the claimant) was conducting a travel agency and monthly income of Rs.12,000/- was claimed but the Tribunal notionally taken the income as Rs.3,500/-, which, according to him, is very low. He would also contend that the compensation awarded under other heads are also very low and seeks for enhancement on all heads. 10. The learned Standing Counsel on the other hand would contend that a just and reasonable compensation has already been awarded and hence no enhancement is required under any of the heads. 11. Though monthly income was claimed as Rs.12,000/in the claim petition, the claimant did not adduce any evidence to prove the actual income. So the Tribunal cannot be found fault with for notionally fixing the income. However the MACA No.690/2013 5 question is whether the amount of Rs.3,500/- taken by the Tribunal will be a just and reasonable amount. 12. In Ramachandrappa 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. 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 MACA No.690/2013 6 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 Ramchandrappa'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. 14. In the present case, the accident occurred on 07.09.2007. The claimant was 29 year old young man. He is alleged to be conducting a travel agency. Claimant could not produce any document or other evidence to substantiate the same. Hence taking into account the settled position of law as well as the facts and circumstances, the monthly income of the claimant can notionally be taken as Rs.6,000/-. 15. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt MACA No.690/2013 7 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 case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. 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 MACA No.690/2013 8 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. 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 of the above decision, 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 MACA No.690/2013 9 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 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. Ext.A6 is the copy of the wound certificate issued MACA No.690/2013 10 from Medical Trust Hospital, Ernakulam, where claimant had undergone treatment. Ext.A7 is the discharge summary issued from the same hospital. The claimant sustained the following injuries: - “1. Centrina on the left parietal eminence; 2. lacerated wound on the right leg; 3. Lacerated wound on the right calf; 4. Lacerated wound on the right ankle; 5. Lacerated wound on the right foot; 6. Bleeding from the nose and left ear; 7. Multiple abrasion on the face and extremities.” 19. It has come out that the claimant had undergone 21 days of inpatient treatment and also undergone two surgeries. Ext.A7 discharge summary would show that CT brain showed left petrous temporal bone fracture and hematoma. Left SDH, pneumocephalus, right temporal contusion. Right leg displaced fracture both bone. The treatment procedures noted in the discharge summary, Ext.A7, would show that he underwent emergency decompressive craniectomy and evacuation of EDH on 08.09.2007 under GA. Post operative period was uneventful. He was treated with ventilatory MACA No.690/2013 11 support, antibiotics analgesics, cerebroprotective agents, AED'S, antioedema measures. Orthopedics, Plastic Surgery and ENT consultation were also given. Ext.A10 is the disability certificate in which the Medical Board certified 12% permanent disability. Tribunal also taken the same percentage for calculation purpose. 20. In view of the serious nature of the injuries sustained by the claimant, 12% disability assessed by the Medical Board which was adopted by the Tribunal can very well be approved. So taking into the facts and circumstances, the compensation awarded to the claimant can be re-fixed as follows: 21. It has come out in evidence that he had undergone 21 days inpatient treatment. He had head injury as well as both bone fracture of right leg. But Tribunal awarded only three months loss of earning. In view of the facts and circumstances, loss of earnings for five months can be awarded to the claimant. So towards loss of earning, the claimant is entitled to get Rs.19,500 /- [6,000x5 - 10,500]. MACA No.690/2013 12 Towards extra nourishment only Rs.1,500/- was awarded. In view of the nature of injuries and the period of treatment including two surgeries, an amount of Rs.1,500 /- is awarded in addition towards extra nourishment. Towards bystanders expenses, Tribunal taken only Rs.200/- per day. The accident was in 2007. So Rs.250/- per day can be taken towards bystander expenses. So on that head the claimant will be entitled to get Rs.1,050/ - [250x21–4,200]. Towards permanent disability claimant is entitled to get Rs.61,200/[6,000x12x17x12/100 – 85,680 (amount already awarded by the Tribunal)]. In view of the injuries and the permanent disability sustained by the claimant an amount of Rs.10,000/is further awarded towards loss of amenities. 22. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.93,250/- (Rupees ninety three thousand two hundred and fifty only) [19,500+1,500+1,050+61,200+10,000], which will carry interest at the rate of 7.5 % per annum from the date of petition till realisation (excluding the period of 97 days delay MACA No.690/2013 13 caused in filing the appeal). The third 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, if any. 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 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/