N. Narayanankutty v. Suraj S/o Nadarajan Attukadav vil and Vijayan S/o Damodhara n Savitha and The Manager National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943** **MACA NO. 2126 OF 2010** **AGAINST THE AWARD DATED 30.13.2010 IN OPMV 1362/2000 ON THE FILED OF THE COURT OF MOTOR ACCIDENTS CLAIM TRIBUNAL, MAVELIKKARA** ## **APPELLANT/PETITIONER IN O.P.(MV) NO.1362/2000:** **N.NARAYANANKUTTY AGED 44 YEARS, VELANPARAMBIL VEEDU,, CHERAVALLY MURI, KAYAMKULAM VILLAGE. BY ADV SMT.R.RANJANIE** ## **RESPONDENTS/RESPONDENTS IN O.P.(MV) NO.1362/2000:** **1 SURAJ S/O NADARAJAN ATTUKADAVIL, KARUVATTA P.O., KARUVATTA, 690517. 2 VIJAYAN S/O. DAMODHARAN SAVITHA, VETTUVENI MURI, PALLIPAD VILLAGE, 690512. 3 THE MANAGER NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE,, KAYAMKULAM, 690502.** ## **BY ADV.SRI E.M JOSEPH-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2126 of 2010 **2** ## **M.R.ANITHA, J.** ## **----------------------------------------M.A.C.A No. 2126 of 2010** **----------------------------------------** Dated this the 17[th] day of January, 2022 ## **JUDGMENT** This appeal has been filed against the award in O.P.M.V No.1362/2000 on the file of Motor Accidents Claims Tribunal, Mavelikara (In short Tribunal). The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant/claimant. 2. It is alleged that on 01.08.2000 at about 4.30 p.m., while the appellant/claimant (here in after be referred as claimant) was walking through the side of the RantamkuttyKrishnapuram road, a goods carriage bearing Reg.No.KL-4A- 7417 driven by the 1[st] respondent in a rash and negligent manner hit against the claimant, thereby he sustained serious injuries. A total compensation of Rs.1,50,000/- has been claimed. M.A.C.A No. 2126 of 2010 **3** 3. Before the Tribunal, the respondents 1 and 2 remained ex parte and the 3[rd] respondent insurer alone filed written statement, contending that petition is not maintainable. Policy coverage with respect to offending vehicle is admitted. It is also contended that the amount of compensation claimed under various heads are exorbitant. The allegation of negligence on the part of the 1[st] respondent is denied. It is further contended that the 1[st] respondent did not have any effective driving license. The appellant was also put to strict proof regarding the injuries and treatment undergone by him. 4. Claimant got examined himself as PW1 and Exts.A1 to A8 were marked from the side of the claimant. There was no defence evidence from the side of 3[rd] respondent. 5. Tribunal found that the accident occurred due to rash and negligent driving of the 1[st] respondent and the 3[rd] respondent has been directed to deposit the compensation amount within a period of one month. The Tribunal awarded a M.A.C.A No. 2126 of 2010 **4** total compensation of Rs.27,500/- under various heads with interest at the rate of 8% per annum. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant is before this Court in appeal for the various grounds stated in the memorandum of appeal. Notice to 1[st] respondent was dispensed with as per the order dated 21.10.2021 at the risk of the claimant. 7. Lower court records were called for and perused and the learned counsel for the claimant and the learned Standing Counsel for the 3[rd] respondent were heard. 8. According to the learned counsel, the claimant was a head load worker but the Tribunal fixed his monthly income as Rs.2,500/-. It is very low and considering the avocation of the claimant, she claimed an amount of Rs.5,500/- towards monthly income. It is also contended that the claimant sustained two fractures in his sacrum region and inferior and superior pubic ramous, right. So the amounts awarded towards the 'pain and suffering' and 'loss of M.A.C.A No. 2126 of 2010 **5** amenities' are too low. Being a head load worker, due to fracture and disability, he may not be able to continue the head lord work. But no amount was awarded towards loss of earnings. 9. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that the accident occurred in the year 2000 and a reasonable amount of Rs.2,500/- has already been fixed towards the monthly income by the Tribunal and a reasonable compensation has been awarded under various heads. No interference is called for in this appeal. 10. It has come out from the oral evidence of the claimant as PW1 that he is a head load worker. Since the accident happened in the year 2000, reasonable monthly income of Rs.3,000/- can be notionally fixed. 11. Discharge certificate produced as Ext.A7 would prove that initially the claimant undergone treatment at Taluk Hospital, Kayamkulam, from there he was referred to M.A.C.A No. 2126 of 2010 **6** Medical College, Alappuzha. Discharge certificate as well as Ext.A5 wound certificate would prove that the claimant sustained fracture in his sacrum region as well as in pubic ramous, right. He has been admitted in Medical College Hospital from 01.08.2000 to 03.08.2000. The discharge certificate further reveals that he was advised bed rest for a period of two months and daily cleaning also advised. 12. The Tribunal awarded 'loss of earnings' for a period of three months. Evaluating the nature of injuries and period of treatment undergone by the claimant, that appears to be reasonable ie, 3,000x3=9,000/-. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.1,500/-** (9,000-7,500) towards 'loss of earnings'. 13. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the apex court has elaborately discussed the general principle relating to compensation in injury cases. In personal injury cases, heads under which the compensation is awarded has been classified M.A.C.A No. 2126 of 2010 **7** 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 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. 14. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (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 M.A.C.A No. 2126 of 2010 **8** ## normal longevity). 15. 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. The learned counsel contended that the claimant has suffered two fractures and two months bed rest was also advised. Towards 'pain and sufferings' only Rs.12,000/- was awarded by the Tribunal. In view of the nature of the injuries and the period of treatment undergone by the claimant, an amount of **Rs.6,000/-** further can be granted towards pain and suffering. 17. The learned counsel further contended that no amount was awarded towards 'future loss of earning'. The injuries sustained by the appellant will definitely cause loss to M.A.C.A No. 2126 of 2010 **9** his earnings capacity in future especially being a head load worker. Unfortunately no disability certificate has been produced from the side of the claimant. 18. However, in view of the nature of injuries sustained by the claimant, I am of the view that some amount has to be granted towards 'loss of amenities'. The Tribunal awarded an amount of Rs.5,000/- towards loss of amenities. Further an amount of **Rs.7,000/-** is awarded towards loss of amenities. Hence, the claimant is entitled to get an enhanced compensation of Rs. **Rs. 14,500/-** (Fourteen thousand five hundred only)(1,500+6,000+7,000) 19. In the result, claimant is allowed to realize an enhanced compensation of Rs.14,500/- in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced 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. M.A.C.A No. 2126 of 2010 **10** 20. The appeal is filed with a petition to condone delay of 100 days. While condoning the delay by order dated 21.10.2021 in C.M.Appl.No.1/2013 (CMAP.No.2763/2010), it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 100 days is excluded. 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 a certified copy of this judgment. SD/- **M.R.ANITHA JUDGE** rps/