P. Murugan v. Sinjo Joseph and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943** ## **MACA NO. 187 OF 2013** **AGAINST THE AWARD DATED 21-11-2011 IN OPMV 18/2008 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/PETITIONER:** P.MURUGAN, AGED 56 YEARS S/O UNNIYEKKAN, PARALVALLIYIL HOUSE, KOTTAYIL, CHULLIYODE P.O., NENMENI VILLAGE, SULTHANBATHERY TALUK, WAYANAD DISTRICT. BY ADVS. SRI.ABRAHAM P.GEORGE SMT.M.SANTHY SRI.K.VINODKUMAR 70789 ## **RESPONDENTS/RESPONDENTS:** 1 SINOJ JOSEPH, AGED 33 YEARS S/O JOSEPH, PUTHENPURYIL HOUSE, NADAVAYAL P.O., NADAVAYAL VILLAGE, SULTHANBATHERY TALUK, WAYANAD DISRICT. (DRIVER OF THE TIPPER LORRY BEARING NO.KL-12B-9712) 670 721. 2 VINDO C.S., S/O SCARIA, 1/48, CHAPPANTHADATHIL HOUSE, NADAVAYAL P.O., PANAMARAM, WAYANAD DISRICT (OWNER OF THE TIPPER LORRY BEARING NO.KL-12-B-9712) 670 721. 3 THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LTD., 5TH FLOOR, ROHIT CHAMBERS, JANMABHOOMI MARG, MUMBAI-400001. (INSURER OF THE TIPPER LORRY BEARING NO.KL-12-B-9712). BY ADV SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU P.K MANOJ KUMAR. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.187 of 2013 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.18/2008 on the file of Motor Accidents Claims Tribunal, Kalpetta. 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 17.2.2007 at about 8 p.m. the claimant was travelling in a jeep bearing registration No.KL-7 C 313 from Ambalavayal to Meenangadi. When the jeep reached at Kumbleri town, a lorry bearing Registration No.KL-12 B 9712 driven by the 1[st] respondent came from the opposite direction and hit the jeep, as a result, the claimant sustained grievous injuries. The accident happened due to the rash and negligent driving of the lorry by the 1[st] respondent. 2[nd] respondent is the owner of the lorry and 3[rd] respondent is the insurer. Total compensation of Rs.6,00,000/- has been claimed. 3. The 1[st] respondent and 2[nd] respondent had filed joint written statement. The 3[rd] respondent/Insurance Company MACA.No.187 of 2013 3 filed written statement admitting the policy coverage with respect to the offending vehicle. The rashness and negligence on the part of the 1[st] respondent is denied. It is further contended that the incident happened solely due to the rashness and negligence on the part of the driver of the jeep. 4. The claimant is examined as PW1. Exhibits A1 to A9 marked from the side of the claimant. Ext.C1 is the disability certificate issued by the medical board. Tribunal on evaluating the pleadings and evidence awarded compensation of Rs.3,05,920/- in total. 5. The compensation awarded by the tribunal under various heads are as follows: **==> picture [320 x 261] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>Income/notional income 3,000-00<br>Loss of earning (Total) 15,000-00<br>Loss of earning (partial) Nil<br>Medical and miscellaneous<br>26,500-00<br>expenses<br>Future treatment NA<br>Bystander expenses 8,900-00<br>**----- End of picture text -----**<br> MACA.No.187 of 2013 4 **==> picture [320 x 521] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>Transportation expenses 5,200-00<br>Extra nourishment 8,900-00<br>Damage to clothing 500-00<br>Pain and suffering 30,000-00<br>Loss of dependency NA<br>Loss of consortium NA<br>Loss of love and affection NA<br>Compensation for permanent 2,05,920-00<br>disability<br>Loss of amenities and 5,000-00<br>conveniences etc.<br>By-stemula expenses Nil<br>Loss of earning power Nil<br>Total 3,05,920-00<br>**----- End of picture text -----**<br> 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 along with petition to condone MACA.No.187 of 2013 5 the delay of 300 days in filing the appeal. As per order dated 20.12.2021 in C.M. Appln. No.1/2013 (CMAP No.213/2013) this Court condoned the delay with a condition that if ultimately the appeal is allowed and the compensations is enhanced, the petitioner would be disentitled for interest for the period of 300 days. As per per order dated 20.12.2021 this Court dispensed with the notice as against the 2[nd] respondent, since, the 3[rd] respondent admitted the insurance coverage with respect to the offending vehicle. 7. Heard the learned counsel for the appellant and also the learned Standing Counsel Adv.P.K.Manoj Kumar for the 3[rd] respondent Insurance Company. Lower court records were called for and perused. 8. The findings with respect to the negligence on the part of the 1[st] respondent and the liability of the 3[rd] respondent is not in dispute. The only dispute is with regard to the quantum of compensation awarded by the Tribunal. 9. According to the learned counsel, the claimant was 52 years old at the time of accident and he was a coolie worker and was having a monthly income of Rs.6,000/-. But, MACA.No.187 of 2013 6 the Tribunal notionally fixed his income as Rs.3,000/- per month which is very low since the accident occurred in the year 2007. 10. 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. 11. 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 MACA.No.187 of 2013 7 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. 12. The learned counsel also placed reliance on Minu Rout and Anr. vs. Satya Pradyumna Mohapathra and Ors. [2013 O ACJ 2544] where the accident occurred on 08.11.2004 and deceased was a driver and claimed a monthly income of Rs.5,000/-. Tribunal for the reason that no documents were produced to prove the income, taken Rs.3,000/- as monthly income. That was approved by the High Court. But the Apex after finding that the order of High Court is erroneous and suffers from error in law found that salary of MACA.No.187 of 2013 8 the deceased driver ought to have been taken as Rs.6,000/by taking notice of the fact that the post of driver is a skilled job. However, the claimant in this case is a coolie. 13. In this case, the claimant got himself examined as PW1 and categorically stated that he would get daily wage of Rs.200/-. So, in view of the settled position as well as evidence of PW1 the claimant the monthly income claimed as Rs.6,000/- is seems to be reasonable. So taking into account the totality of the facts and circumstances Rs.6,000/-claimed as monthly income is accepted. 14. It is further contended that the amount awarded towards loss of earnings, attendance expenses, pain and suffering and loss of amenities as well as future earing is very low comparing the loss sustained. 15. The Standing Counsel for the insurer on the other hand would contend that just and reasonable compensation has already been awarded by the Tribunal. No further enhancement is required in this case. MACA.No.187 of 2013 9 16. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 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. 17. In personal injury cases, heads under which the compensation is awarded has been classified into two as MACA.No.187 of 2013 10 pecuniary damages (Special damages) and non pecuniary damages (general damages). 18. 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. 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.187 of 2013 11 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. 19. In the present case, it has come out from Exhibit A5 wound certificate, Exhibit A6 series as well as Exhibit A7 discharge cards, the injury sustained by the claimant as well as the treatment undergone by him. Exhibit A5 wound certificate would show that the claimant had sustained the following injuries: - 1) Head injury with ear bleeding. - 2) Suspected fracture right leg tibia and fibula. - 3) Fracture to left patella - 4) Fracture to left codis - 5) Fracture to right femer shaft - 6) Fracture to right forearm Discharge summary Exhibit A6 series would reveal that he had both bone fracture of left leg and the various procedures of treatment undergone by him. He had undergone total 89 days MACA.No.187 of 2013 12 inpatient treatment on three occasions. Exhibit C1 disability certificate issued by the medical board certified that 52% permanent disability. The claimant as PW1 also categorically disclose that at present he could not go for any work and he cannot do any thing by his own without the aid of others. So the medical records as well as the oral evidence of the claimant substantiate 52% of whole body disability that has been accepted by the Tribunal also. I don’t find any reason to make any deviation from the assessment of 52% of permanent disability assessed by the medical board accepted by the Tribunal. 20. So in the present case the claimant is entitled to get **loss of earnings** for 6 months as Rs.36,000/- (6,000x6), out of it, the amount already awarded is to be deducted, the balance would be **Rs.21,000/-** (36000-15000). Towards bystander expense the Tribunal awarded Rs.100/- per day for 89 days. Since the incident was in the year 2007, Rs.250/per day can be taken for a days wage for bystander. So under the head of **bystander expense** the claimant is entitled to get MACA.No.187 of 2013 13 the total amount of Rs.22,250/-(Rs.250x89). Deducting the amount already awarded, the claimant is entitled to get **Rs.13,350/-** (22,250-8,900). Towards pain and sufferings the Tribunal already awarded Rs.30,000/-. In view of the serious nature of injuries including head injury fracture both bones left lower head and other injuries sustained by the claimant and the prolonged treatment undergone by the claimant, I am of the considered view that **Rs.20,000/-** enhanced amount can be awarded towards **pain and suffering** . 21. Towards future loss of earning power multiplier of '11' has been correctly adopted by the Tribunal. Hence, compensation under that head would be Rs.6,000 x 12 x 11 x 52/100=Rs.4,11,840/-. Deducting the amount already awarded, the balance would **be Rs.2,05,920/-** (Rs.4,11,8402,05,920). Towards loss of amenities the Tribunal awarded only Rs.5,000/-, which according to the learned counsel for the claimant is very low in view of the grievous nature of the injuries sustained by the claimant and the period of treatment MACA.No.187 of 2013 14 undergone by him. So taking into account the totality of the facts and circumstances, an amount of Rs.15,000/- is awarded towards **loss of amenities** . Deducting the amount already awarded by the Tribunal the balance would be **Rs.10,000/-** (Rs.15,000-5,000). Further enhancement is not called for under any other heads. So the claimant is entitled for the enhanced compensation of **Rs.2,70,270/-** (Rs.21,000 + 13,350 + 2,05,920 + 20,000 + 10,000). 22. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.2,70,270/- (Rupees two lakhs seventy thousand two hundred and seventy only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the **date of petition on 03.5.2007** till realisation excluding 300 days, the delay caused in filing this appeal . 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. The appellant shall provide the Bank account details MACA.No.187 of 2013 15 (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