Nazeer s/o Kunji Moidu v. Ullas and The New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944** **MACA NO. 1416 OF 2012** **AGAINST THE AWARD IN OPMV 353/2009 OF MOTOR ACCIDENTS CLAIMS** **TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **NAZEER S/O. KUNJI MOIDU, AMBALATH VEETTIL HOUSE, CHEVALLOOR DESOM, KANDANISSERY P.O., ARTHAT VILLAGE, THRISSUR DISTRICT. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN** ## **RESPONDENTS/RESPONDENTS:** **1 ULLAS, S/O. UNNIKRISHNAN, PORKKALANGADU HOUSE, PORKULAM, KUNNAMKULAM, PIN-680 320 (OWNER CUM DRIVE OF KL8-K 6596 MOTOR CYCLE). 2 THE NEW INDIA ASSURANCE COMPANY LTD. JRJ COMPLEX, OTTAPPALAM, PIN-679 319, POLICY NO. 761103/31/07/02/00014984) VALID FROM 13-02-2008 TO 1202-2009. BY ADVS. M.MEENA JOHN VIJU THOMAS-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1416 of 2012 **2** ## **JUDGMENT** Appellant is the claimant in O.P.M.V No.353/2009 on the file of Motor Accidents Claims Tribunal, Ottappalam (In short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant in a motor accident occurred on 05.02.2009 at about 5.45 pm by hit with motor cycle bearing Registration No.KL-8K-6596 driven by the 1[st] respondent while appellant was riding his motor cycle bearing Registration No. KL-8-U-1109 at Anaikkal. It is alleged that the accident happened due to the rash and negligent riding of the 1[st] respondent, the rider of the motor cycle bearing Registration No.KL-8K-6596. 1[st] respondent is the owner cum driver of the offending vehicle and 2[nd] respondent is the insurer. 2. Before the Tribunal, the 1[st] respondent, the owner cum driver of the offending vehicle filed written statement denying negligence attributed against him and contending that the accident happened due to the negligence on part of the appellant himself. Appellant was put to strict proof regarding the compensation claimed under various heads. 2[rd] respondent also filed written statement denying the negligence on the part of the 1[st] respondent and insurance coverage with respect to M.A.C.A No. 1416 of 2012 **3** the offending vehicle is admitted. It is also contended that 1[st] respondent was not having valid driving license for which he was charge sheeted u/s 3(1) of the Act and hence 2[nd] respondent is not liable to indemnify the insured. 3. Appellant was examined as PW1. Exts. A1 to A13 and B1 and B2 were marked. On evaluating the evidence as well as the facts and circumstances, the Tribunal found that accident happened due to the rash and negligent driving of the 1[st] respondent and pay and recovery order has been passed. Total compensation of Rs.95,600/under various heads together with interest at the rate of 8% per annum was awarded. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Despite repeated notice issued to 1[st] respondent, he could not be served. Hence, substituted service of notice on the 1[st] respondent by paper publication is effected. There was no appearance on behalf of 1[st] respondent. Adv.Viju Thomas, appeared on behalf of 2[nd] respondent/insurer. 5. Heard the learned counsel for the appellant as well as the learned counsel for the 2[nd] respondent/insurer. LCR was called for and M.A.C.A No. 1416 of 2012 **4** perused. 6. According to the learned counsel for the appellant, he is a construction worker. During cross examination, he stated that he is a coolie and earning monthly income of Rs.5,000/-. But Tribunal taken his monthly income as Rs.3,000/-. It is contended that Ext.A10 disability certificate issued by Neuro Surgeon attached to Kovoor Institute of Neuro-Science (KINS), wherein the injured had undergone treatment, certified 10% disability. But the Tribunal did not accept the disability certificate since the Doctor who issued the disability certificate was not examined. That is illegal. Hence appellant seeks for enhancement of compensation on all heads. 7. The learned Standing Counsel for the 2[nd] respondent 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. Claimant was examined as PW1 and he deposed about his avocation as construction worker. During cross examination he deposed that he is a Coolie. It is true that the claimant cannot produce any document to prove his actual income. 9. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex M.A.C.A No. 1416 of 2012 **5** Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. 10. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. 11. In the present case, the accident occurred in the year 2009. Having regard to the principles laid down by the Apex Court in the above decisions, the monthly income of **Rs.5,000/-** claimed can reasonably be accepted **.** 12. 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 M.A.C.A No. 1416 of 2012 **6** have been discussed in detail. 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. 13. 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). 14. 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 M.A.C.A No. 1416 of 2012 **7** thereof on the future life of the claimant. 15. The injuries sustained by the claimant are “fracture left mastoid, fracture Rt. Occipital left sphenoid bone and subdural haematoma”. Ext.A2 is the copy of the wound certificate issued from Amala Institute of Medical Science, Thrissur wherein noted same injuries as extracted above. Ext.A9 is the discharge summary issued from the same hospital wherein he had undergone inpatient treatment from 05-02.2009 to 24.02.2009. Ext.A11 is the scan report which would note, “fracture left mastoid, fracture Rt. Occipital left sphenoid bone and subdural haematoma”. Disability certificate issued by the Neuro Surgeon attached to Kovoor Institute of Neuro-Science (KINS) would prove the prolonged treatment undergone by him. During Cross examination, PW1, the appellant deposed about the injuries sustained by him and also stated about the memory loss. In the disability certificate issued by the Doctor Kovoor Institute of Neuro-Schience (KINS) certified that he has head ache and difficult to communicate. 16. Eventhough Tribunal marked the disability certificate without objection, it refused to accept it because Doctor who issued disability certificate was not examined. As per **Raj Kumar (supra),** if at M.A.C.A No. 1416 of 2012 **8** all Tribunal was not satisfied with the medical records produced by the appellant, it ought to refer the patient to a Medical Board to ascertain the genuineness of the medical evidence. In **Karunakaran @ Kannan v. Abdul Rasheed and Others** [2015 5 KHC 355], it has been held that there is no hard and fast rule that in all cases, invariably Doctor should be examined to accept the permanent disability certificate issued by him. 17. In this case appellant was examined and deposed about injuries, inconvenience and difficulties suffered by him.10% disability has been assessed by the Doctor. In this case claimant has undergone 19 days inpatient treatment and injuries are on head as described above. So in view of the serious nature of injuries sustained by the claimant and 10% disability certified by the Doctor who treated the claimant as well as in view of the categoric evidence of PW1 before the court, I find it just and proper to accept 10% functional disability to the appellant. He is claimed to be a construction worker/Coolie. Hence the accident and resultant injuries would definitely affect his earning capacity. The Tribunal awarded 'loss of earnings' for a period of four months, that can be approved, evaluating the nature of injuries and period of treatment undergone by the appellant. Hence refixing the amount M.A.C.A No. 1416 of 2012 **9** towards loss of earning, it would come to 5,000x4=20,000/-. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.8,000/-** (20,000-12,000) towards 'loss of earnings'. 18. Claimant was 34 years old. Suitable multiplier to be adopted 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)** is '16'. So, towards permanent disability, the claimant is entitled to get 5000x12x16x10/100=Rs.96,000/-. Amount already awarded towards loss of earning capacity has to be deducted, the balance would Be **Rs.86,000/-** (96,000-10,000). 19. Towards the bystander expenses, the Tribunal awarded Rs.3,800/-. The accident occurred in the year 2009. Hence towards by stander expenses, claimant is entitled to get Rs.250/- per day. Under that head, claimant would be entitled to get Rs.4,750/-(250x19). Deducting the amount already awarded, the balance would be **Rs.950/-** (4,750-3,800). Towards extra nourishment, an amount of Rs.1,900/- awarded by the Tribunal. In M.A.C.A No. 1416 of 2012 **10** view of the facts and circumstances, Rs.3,000/- is to be awarded under the head of extra nourishment. Deducting the amount already awarded, the balance would be **Rs.1,100/-** (3,000-1,900). Hence, the claimant is entitled to get total enhanced compensation of **Rs. 96,050/-** (Ninety six thousand fifty only) (86,000+950+1,100+8,000). Tribunal already found that 1[st] respondent/owner cum driver was not having valid driving license to drive vehicle. Tribunal allowed the insurer to realise the amount from the 1[st] respondent. Though service of notice was effected through substitute service to 1[st] respondent, there was no appearance on behalf of him and there is no further challenge against the pay and recovery order. Ext.A5 charge sheet was also laid under Section 3(1) r/w 181 of the Act against the 1[st] respondent. Hence, the pay and recovery ordered by the Tribunal is maintained. (See **Parminder Singh v. New India Assurance Co. Ltd. Others [AIR 2019 SC 3128], Oriental Insurance Co. Ltd v. Poulose [2015 (1) KLT 682]** ). 20. In the result, claimant is allowed to realize enhanced compensation of **Rs. 96,050/-** in this appeal, which will carry M.A.C.A No. 1416 of 2012 **11** interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.2 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. 21. The appeal has been filed with a petition to condone delay of 139 days. While condoning the delay by order dated 02.02.2022 in CMA.No.1/2012 (CMA.No.1688/2012), 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 139 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 with copy to the Standing Counsel for insurer within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs.. rps/ **M.R.ANITHA, JUDGE**