Nana Sampathkumar v. K.C. Dharman and United India Insurance Company 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. 412 OF 2013** **AGAINST THE AWARD IN OPMV 398/2005 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD, DATED 19TH JULY,2012** ## **APPELLANT/PETITIONER:** NANA SAMPATHKUMAR, AGED 38 YEARS S/O.SOWRIYAR, NANI VEEDU, CANALPIRIVU, PAMPAMPALLAM, VATTAPPARA, PALAKKAD DISTRICT. BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL) ## **RESPONDENTS/RESPONDENTS:** 1 K.C. DHARMAN AGE AND FATHER'S NAME NOT KNOWN, NO.32, 1ST CROSS, D'COSTS SQUARE, COOKE TOWN, BANGALORE-560084 (OWNER OF THE TIPPER KA-03/AC 9369 TANKER LORRY). 2 UNITED INDIA INSURANCE COMPANY LTD. NO.89/1, IIND FLOOR, 11TH CROSS, MALLESWARAM, BANGALORE-560 003. (INSURER OF KA-03/AC 9369 TANKER LORRY), POLICY NO.071602/31/04/03215 VALID FROM 16-6-04 TO 15-6-05. BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL **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.412 of 2013 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.398/2005 on the file of Motor Accidents Claims Tribunal, Palakkad. 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 in a motor accident. 2. It is alleged that on 22.9.2004 while the appellant/claimant was riding his TVS 50 motorcycle with care and caution the lorry bearing registration No.KA-03/AC-9369 driven by the 2[nd] respondent in a rash and negligent manner hit on the appellant , as a result he sustained grievous injuries. He was immediately, taken to Sri.Balaji Hospital, Palakkad. 3. The accident happened due to the rash and negligent driving KA-03/AC-9369 lorry by the 2[nd] respondent which is owned by the 1[st] respondent and 3[rd] respondent is the insurer of the vehicle. Total compensation of Rs.4,00,000/ (Rupees four Lakhs only) has been claimed. MACA.No.412 of 2013 3 4. Before the Tribunal the 3[rd] respondent/Insurance Company filed written statement admitting the policy coverage with respect to the offending vehicle. It is contented that the accident happened due to the rash and negligent riding of motorcycle by the appellant/claimant. The age, income and occupation of the appellant/claimant (herein after be referred as claimant) was also disputed. 5. There was no oral evidence adduced from either side. Exhibits A1 to A10 series were marked from the side of the appellant/claimant. Exhibit X1 also marked from the side of the claimant. Tribunal on evaluating the pleadings and other materials, awarded a compensation of Rs.1,53,000/- in total. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. Heard the learned counsel for the appellant and also the learned Standing Counsel Adv.Thomas Mathew Nellimoottil MACA.No.412 of 2013 4 for the 2[nd] respondent Insurance Company. Since the policy is admitted, notice to 1[st] respondent was dispensed with. Lower court records were called for and perused. 8. The liability is admitted and only dispute is with regard to the quantum of compensation awarded by the Tribunal. 9. According to the learned counsel for the appellant/claimant the claimant was doing contract work and claimed a monthly income of Rs.5,000/- but the Tribunal fixed the monthly income as Rs.2,500/- which according to him is very low. 10. It is also contended that the amount awarded towards transportation charges, medical expenses, permanent disability etc. are very low and hence claimed for enhancement on those heads. 11. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no interference is called for at the instance of this Court in this MACA.No.412 of 2013 5 ## appeal. ## 12. In this case, the compensation awarded by the ## tribunal under various heads are as follows: |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |---|---| |Loss of earnings|Not allowed| |Partial loss of earning|| |Transport Expense|3,000-00| |Extra nourishment|2,500-00| |Damage to clothing|500-00| |Medical expenses|79,000-00| |Attender's charges|Not allowed| |Pain and suffering|20,000-00| |Continuing and<br>permanent disability|37,800-00| |Loss of earning power|Not allowed| |Loss of amenities|10,000-00| |Total|1,53,000-00<br>rounded off| MACA.No.412 of 2013 6 13. The claimant is said to be doing contract work and monthly income claimed is Rs.5,000/-. The monthly income has been notionally fixed by the Tribunal in the absence of evidence adduced by the claimant to prove the actual income and occupation. 14. 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 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. MACA.No.412 of 2013 7 15. 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 vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 16. The claimant was 31 years old at the time of accident on 22.09.2004 and he has also doing contract work. Hence, as per the settled principles the monthly income of the claimant can very well be fixed as Rs.4,500/- instead of Rs.2,500/- fixed by the Tribunal. 17. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1** MACA.No.412 of 2013 8 **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. 18. In personal injury cases, heads under which the compensation is awarded has been classified into two as MACA.No.412 of 2013 9 pecuniary damages (Special damages) and non pecuniary damages (general damages). 19. 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.412 of 2013 10 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. 20. In this case, the claimant produced Exhibits A6 to A9 to prove the injury sustained as well as the treatment undergone by the claimant. Exhibit A6 is the discharge summary dated 29.11.2004 issued from Sri.Balaji Hospital, which would show inpatient treatment from 23.9.2004 to 10.11.2004. Exhibit A7 is the wound certificate issued from Sri.Balaji Hospital, it would also shows that he has undergone treatment from 23.9.2004 to 10.11.2004 and the injuries noted are: 1. Gr- 3B COMPOUND # LEFT FEMUR 2. MULTIPLE ABRATION ALL OVER THE BODY 3. LACERATED WOUND OVER LEFT LEG OF SIZE 3X2 CM It is further noted that No.1 injury is grievous, No.2 and No.3 are simple. MACA.No.412 of 2013 11 21. The certificate issued by the Civil Surgeon attached to Balaji Hospital dated 29.7.2005 certify that the injured was admitted in the said hospital, in the wound certificate issued on 31.12.2004 Gr-3B COMPOUND # LEFT FEMUR was noted as left side instead of right side. Actually the injury is on right femur. Exhibit A8 is the discharge summary for the same period. Exhibit A9 is the another discharge summary issued from Palaghat Poly Clinic certifying that the injured has been subsequently admitted in the said hospital from 07.2.2005 to 12.2.2005 for removal of screw. So the medical records produced from the side of the claimant would prove that he had undergone total inpatient treatment for 24 days. 22. Towards loss of earnings Rs.20,000/- was claimed, but no amount was awarded by the Tribunal. Exhibit X1 disability certificate issued by the board also would certify that that he had 7% permanent disability. So taking into account the nature of injuries and the period of inpatient treatment for total 24 days undergone by the claimant on two occasions and further that the fracture was to right femur, I am of the MACA.No.412 of 2013 12 considered view that due to the accident and the resultant injuries, the claimant might have been prevented from going for work at least 4 months. So claimant is awarded **loss of earnings** for 4 months ie. **Rs.18,000/-** (Rs.4,500x4). Towards attendance expenses the claim of Rs.2,000/- was made. No amount was seen awarded. It has come out that he had undergone inpatient for 24 days in total. So under the head of **attendance expenses** the claimant is entitled to get **Rs.4,800/-** (24x200). Towards continuing and permanent disability the Tribunal awarded Rs,37,800/-. His monthly income has already been fixed as Rs.4,500/-. The Tribunal further applied multiplier of '18'. The proper multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '16', since, the claimant was 31 years at the time of accident. Hence, the amount MACA.No.412 of 2013 13 towards continuing and **permanent disability** is Rs.60,480/(4,500x12x7x16/100). Deducting the amount already awarded Rs.60,480-37,800= **Rs.22,680/-.** No further enhancement is called for under any other heads. So the claimant is entitled for the enhanced compensation of Rs.22,680+18,000+4,800=Rs.45,480/-. 26. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.45,480/- (Rupees forty five thousand four hundred and eighty only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition till realisation. The 3[rd] respondent 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 certified copy of this judgment. 27. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.45,480/-** which will carry interest @ 7.5% per annum from the date of petition excluding the period of delay of 51 days in filing the appeal. The 3 rd MACA.No.412 of 2013 14 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