Navas.S v. Nikalos and 2 Others and The Branch Manager Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944** ## **MACA NO. 1187 OF 2010** ## **AGAINST THE AWARD IN OPMV 1391/1998 OF MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL, MAVELIKKARA** ## **APPELLANT/PETITIONER:** **NAVAS.S AGED 35 YEARS, PUTHUVEL HOUSE, PURACKADU, NOW RESIDING AT KOCHUTHANDASSERIL VEEDU, ARATTUPUZHA P.O., ARATTUPUZHA. BY ADV SRI.RASHEED C.NOORANAD** ## **RESPONDENTS/RESPONDENTS:** |**1**|**NIKALOS AND 2 OTHERS,**| |---|---| ||**S/O ANTONY, CHACKALACKAL HOUSE,**| ||**KARUMADY, ALAPPUZHA.**| |**2**|**ABDUL RAZAK, S/O.ISMAYIL**| ||**KOCHANGADY PTHANPURAYIL,**| ||**Z.H.NAGAR MARKET P.O.,**| ||**MUVATTUPUZHA,**| ||**ERNAKULAM.**| |**3**|**THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD.,**| ||**KOCHI.**| ||**BY ADVS.**| ||**SRI.P.JACOB MATHEW**| ||**SRI.MATHEWS JACOB SR.**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1187 of 2010 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.1391/1998 on the file of Motor Accidents Claims Tribunal, Mavelikara (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injury sustained by the appellant/claimant in a motor accident occurred on 08.01.1998 at about 3.00 am due to hit by mini lorry bearing Registration No.KL-7S-5488 at Aryankavu in Punalur-Chenkotta road while he was walking through side of the road. It is alleged that the accident occurred due to the rash and negligent driving of the 1[st] respondent. 2[nd] respondent is the registered owner of the offending vehicle and 3[rd] respondent is the insurer. A total compensation of Rs.4,50,000/- has been claimed. 2. Before the Tribunal, 1[st] and 2[nd] respondent remained exparte. 3[Rd] respondent alone contested the matter. Policy with respect to the offending vehicle is admitted. Rashness and negligence on the part of the 1[st] respondent is denied. 3. Appellant/claimant was examined as PW1. Exts. A1 to A18 marked from the side of the appellant/claimant. There is no M.A.C.A No. 1187 of 2010 **3** evidence from the side of the respondents. On evaluating the evidence and facts and circumstances, Tribunal found that 1[st] respondent is responsible for the accident and 2[nd] respondent is held vicariously liable for the acts of the 1[st] respondent and 3[rd] respondent is held liable to indemnify the 2[nd] respondent insured. A total compensation of Rs.1,68,600/- was awarded by the Tribunal. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant (hereinafter be referred as claimant) approaches this Court in appeal for various grounds stated in the memorandum of appeal. Service is complete as against 1[st] respondent. Notice against 2[nd] respondent is dispensed with. Adv. P. Jacob Mathew, appeared on behalf of the 3[rd] respondent insurer. Lower court records were called for and perused. 5. Heard the learned counsel for the claimant as well as the learned counsel for the 3[rd] respondent/insurer. 6. According to the learned counsel for the claimant, claimant was 22 years old at the time of accident and he was a head load worker. Very serious injuries has been sustained to him due to the accident. Permanent disability of 32% has been certified by the Doctor attached to Medical College Hospital, Alappuzha. He claimed income of Rs.3,600/- M.A.C.A No. 1187 of 2010 **4** per month. Ext.A11 certificate issued by the Ice & Sea Food Workers Union (INTUC) has been produced to prove his income as Rs.3,600/-. But Tribunal notionally fixed his income as Rs.2,500/- per month. That is very low. It is further contended that Doctor certified permanent disability of 32%. Tribunal arbitrarily reduced the disability to 20%. It is also contended that amount of compensation awarded under other heads are also very low. Hence he seeks for enhancement of compensation on all other heads. 7. The learned Standing Counsel for the 3[rd] respondent/insurer on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 8. First aspect is with regard to the monthly income of the claimant. Claimant has been examined as PW1 and deposed that he is a cleaner in a lorry. On the date of accident, he was returning from Rameswaram after loading fish and when reached at Aryankavu checkpost, the vehicle was stopped for verifying the records. While proceeding to the checkpost, the offending vehicle came in a rash and negligent manner and hit him. Ext.A11 certificate issued by the Secretary of Ice & Sea Food Workers Union (INTUC) dated 07.09.2007 M.A.C.A No. 1187 of 2010 **5** certifying that claimant was a labourer in head load workers union. He was a registered member of the said union. Due to the accident and resultant injuries sustained by him in the year 1998, he was unable to continue with the work. It is also certified that he was getting Rs.3,600/as monthly income. But Tribunal did not accept Ext.A11 certificate since the Secretary who alleged to have issued Ext.A11 certificate was not examined. However, pleadings in the claim petition also show that he is a lorry cleaner doing fish loading work also. Accident was occurred in the early morning hours while he was returning with fish from Rameswaram. Having regard to the facts and circumstances and evidence adduced, income of the claimant is taken as **Rs.2,800/-** per month. 9. 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 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 detail. In personal injury cases, compensation would M.A.C.A No. 1187 of 2010 **6** be awarded only under the heads ie, expenses relating to 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 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 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. 12. In the present case, claimant produced Ext.A1 discharge M.A.C.A No. 1187 of 2010 **7** card issued from the Medical College Hospital, Alappuzha which would prove that he had undergone treatment from 09.01.1998 to 07.03.1998 at Medical College Hospital. 13. Ext.A4 is the disability certificate issued by the Orthopaedic Surgeon attached to Medical College Hospital, Alappuzha certifying 32% of permanent disability. Tribunal did not accept Ext.A4 disability certificate in toto for the reason that Doctor was not examined. However, as per _**Raj kumar (supra)**_ , if at all the Tribunal is not satisfied with the medical evidence, it is his duty to refer the claimant to a duly constituted Medical Board for ascertaining the genuineness of the medical evidence adduced by the claimant. Without adopting that course arbitrarily reducing the disability to 20% is not seems to be reasonable in view of the nature of injuries sustained by the claimant as well as 58 days prolonged treatment at Medical College Hospital undergone by him. Claimant also produced Ext.A7 photographs of foot with negatives which would give a clear picture of nature of injuries sustained by the claimant. In view of the serious nature of injuries and prolonged treatment undergone in Medical College Hospital, I am of the considered view that 32% disability certified by the Doctor is not on higher side. Moreover, being a cleaner cum head load worker, the injury M.A.C.A No. 1187 of 2010 **8** sustained to his leg practically make him unable to continue his work. So there is no justification in reducing the disability assessed by the Doctor. Hence I am of the considered view that 32% permanent disability assessed by the Doctor is to be accepted as the functional disability of the claimant in view of the accident and the resultant injuries. 14. Tribunal already awarded loss of earnings for four months. In view of the serious nature of injuries sustained by the claimant, 4 months loss of earning taken by Tribunal can very well be approved. Refixing the amount towards loss of earning, it would come to 2,800x4=11,200/-. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.1,200/-** (11,200-10,000). 15. Next is with respect to the compensation awarded for permanent disability. The claimant was aged 22 years at the time of accident. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '18'. Hence towards permanent disability, the claimant is entitled to get 2,800x12x18x32/100=1,93,536. Deducting the amount already awarded, the balance would be M.A.C.A No. 1187 of 2010 **9** **Rs.85,536/-** (1,93,536-1,08,000). 16. The learned counsel for the appellant further contended that in view of serious injuries sustained by the claimant, towards pain and suffering Rs.30,000/- was claimed. But Tribunal awarded only Rs.20,000/-. That is very low. In view of the nature of injuries and prolonged treatment undergone by him, Rs.30,000/- claimed can be allowed towards pain and suffering. After deducting the amount already awarded, the balance would be **Rs.10,000/-** (30,000-20,000). Towards loss of amenities, Tribunal awarded Rs.5,000/-. In view of the facts and circumstances, it is enhanced to Rs.10,000/-. After deducting the amount already awarded, the balance would be **Rs.5,000/-** (10,0005,000). Hence, the claimant is entitled to get enhanced compensation of Rs.1,01,736/(85,536+1,200+10,000+5,000) rounded to **Rs.1,01,750/-** . 17. In the result, claimant is allowed to realize enhanced compensation of **Rs.1,01,750/-** (One lakh one thousand seven hundred and fifty only) in this appeal, which will carry interest at the rate of 6% per annum from the date of petition till realization. 3[rd ] respondent/insurer 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. 1187 of 2010 **10** 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. SD/- **M.R.ANITHA, JUDGE** rps/