Mujeeb v. Rajesh and The National Insurance Company Ltd. (MACA No. 2209/2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943** ## **MACA NO. 2209 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 511/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **MANJERI** ## **APPELLANT/PETITIONER:** **MUJEEB AGED 31 YEARS S/O. SAIDALAVI, PUTHUSSERI HOUSE, P.O.POOVATHINKAL, MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS:** **1 RAJESH S/O. KUMARAN, VALLIKUZHIYIL HOUSE, POOLAVALLY, KODANCHERI POST, KOZHIKODE DISTRICT. (DRIVER CUM OWNER). 2 THE NATIONAL INSURANCE COMPANY LTD.** **BRANCH OFFICE, KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI P.O., MALAPPURAM DISTRICT-676 121. (INSURER). BY ADV SMT.P.A.REZIYA** ## **OTHER PRESENT:** **SMT.P.A REZIYA-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2209/2012 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P. (M.V)No.511/2007 on the file of the Motor Accidents Claims Tribunal, Manjeri (in short, the Tribunal). The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) for the injuries sustained by the appellant/claimant in a motor accident occurred on 24.04.2003 at 3.30 p.m while he was riding a motorcycle and hit by a jeep at Thottumukkom on Kodencheri-Areacode road. He claimed total compensation of Rs.2,00,000/-, which was limited to Rs.1,50,000/-. It is alleged that the accident happened due to the rash and negligent driving of the jeep by the first respondent, owner cum driver. 2. Before the Tribunal first respondent remained exparte. Second respondent, insurer, filed written statement admitting the policy coverage with respect to the offending vehicle. 3. Exts.A1 to A4 series were marked from the side of the appellant/claimant. Ext.B1 was marked from the side of the second respondent. Ext.X1 was also marked. 4. On evaluating the pleadings as well as the materials produced, the Tribunal found that the accident happened due to M.A.C.A.No.2209/2012 3 the rash and negligent driving of the jeep by the first respondent and second respondent was held liable to make good the loss sustained by the first respondent as per the contract of insurance and awarded a total compensation of Rs.29,348/- with interest at the rate of 9% from the date of petition till realisation. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant (hereinafter be referred as the claimant) is before this Court in appeal for various grounds stated in the memorandum of appeal. 6. Second respondent appeared through learned Standing Counsel Smt. P.A.Raziya. Since 2nd respondent has admitted the insurance coverage with respect to the vehicle, notice to the first respondent was dispensed with at the risk of the appellant/claimant. 7. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the 2nd respondent, insurer. Lower court records were called for and perused. 8 **.** According to the learned counsel for the claimant, claimant is a coolie, aged 26 years. But the Tribunal took the monthly income as Rs.2,000/-, which is very low. He would also contend that though the Medical Board assessed permanent partial M.A.C.A.No.2209/2012 4 disability as 5%, the Tribunal taken only 3% for computing the future loss of earning, which is not legal and proper. Compensation awarded under various heads are also very low and he seeks for enhancement on all heads. 9. The learned Standing Counsel on the other hand would contend that a just and reasonable compensation has already been awarded on all heads and no interference is called for by this Court in this appeal. 10. Monthly income claimed is Rs.4,500/-. Admittedly, no evidence was adduced by the claimant to prove the actual income. Hence the Tribunal notionally fixed the monthly income as Rs.2,000/-. 11. 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 M.A.C.A.No.2209/2012 5 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. 12. 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 Ramachandrappa'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. 13. In the present case, the accident occurred on 24.04.2003. Claimant was a 26 year old coolie. As per the principles laid down in the above said decisions, his monthly income can very well be taken as Rs.4,000/- instead of Rs.2,000/- M.A.C.A.No.2209/2012 6 taken by the Tribunal. 14. 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 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 compensation should, to the M.A.C.A.No.2209/2012 7 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. 15. 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). 16. In paragraph No.5 of the above judgment, 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 M.A.C.A.No.2209/2012 8 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. 17. The claimant in this case sustained the following injuries: Fracture of proximal phalanx of right little finger, fracture of fifth metacarpal bone, crush injury right little finger and lacerated wounds on the leg and chin. Ext.A3 discharge summary would prove that he has been hospitalized for three days. Medical bills for Rs.3,547.89 has been produced. Medical Board certified 5% permanent partial disability. The Tribunal awarded Rs.4,000/- M.A.C.A.No.2209/2012 9 towards loss of earning for two months and Rs.1,000/- towards partial loss of earning for one month. So taking into account the above factors, especially the fact that the claimant is a coolie, he is entitled for compensation towards loss of earnings for three months. Hence, under the head loss of earning, claimant is entitled to get **Rs.7,000/** - [12,000-5,000 (4,000+1,000)]. 18. Towards pain and suffering, the Tribunal awarded only Rs.7,500/-. It has come out that the claimant had undergone inpatient treatment for 3 days and he has also sustained fracture of proximal phalanx of right little finger, fracture of fifth metacarpal bone and crush injury right little finger and lacerated wounds on the leg and chin and the Medical Board certified 5% permanent partial disability. So towards pain and suffering, Rs.10,000/- can be awarded. Deducting the amount already awarded, the claimant would get **Rs.2,500** /- [10,000-7,500]. 19. Claimant was 26 years old at the time of accident. Hence as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** as approved by **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** the suitable multiplier would be '17'. The disability certificate, Ext.X1, would show that there is total ankylosis of right M.A.C.A.No.2209/2012 10 metacarpal-phalangeal joint of right little finger in extension and partial ankylosis of PIP joint in flexion. Being a coolie these disabilities may cause functional disability at 5%. Thus the compensation towards disability can be re-calculated as Rs.40,800/- [4,000x12x17x5/100]. Under the head of loss of amenities and conveniences/disability, the Tribunal awarded Rs.12,500/-. Deducting the amount already awarded, the balance would be **Rs.28,300/** - [40,800-12,500]. Since the compensation towards permanent disability is separately assessed in the appeal and the amount already awarded towards loss of amenities and conveniences/disability has been deducted, claimant would be entitled for compensation towards loss of amenities also. Being a coolie, the disability would cause inconvenience in performing his coolie work. So, towards loss of amenities, an amount of **Rs.5,000/** - can be awarded. 20. In the result, the claimant is allowed to realise enhanced compensation of **Rs.42,800/** - (Rupees forty two thousand eight hundred only) [7,000+2,500+28,300+5,000], which will carry interest at the rate of **7.5%** per annum from the date of petition till realisation. **Second respondent-insurer** is directed to pay the enhanced compensation granted in this appeal, together with M.A.C.A.No.2209/2012 11 interest, within a period of two months from the date of receipt of certified copy of this judgment. 21. 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, 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**