Padmanabhan v. Stephen Mathai, Anish @ Anil Kumar, and M/S National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944** ## **MACA NO. 1301 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OPMV 392/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** **PADMANABHAN AGED 60 YEARS S/O.VELAYUDHAN, KALAPPURAKKUNNEL HOUSE, THATTARATHATTA KARA, KARIMKUNNAM VILLAGE, NOW RESIDING AT KAPPUKARA, MANJALLOOR VILLAGE, MUVATTUPUZHA.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENTS/RESPONDENTS:** |**1**|**STEPHEN MATHAI**| |---|---| ||**POOKUMPELKALAPURAYIL HOUSE, KARIMKUNNAM P.O., THODUPUZHA,**| ||**PIN-685 586.**| |**2**|**ANISH @ ANIL KUMAR**| ||**S/O.MANI, KUZHICKATTUCHALIL HOUSE, PIZHAKUKARA, RAMAPURAM VILLAGE,**| ||**MUVATUPUZHA, ERNAKULAM DISTRICT-686 661.**| |**3**|**M/S.NATIONAL INSURANCE COMPNAY LTD**| ||**1ST FLOOR, PULIMOOTTIL SHOPPING COMPLEX, THODUPUZHA, PIN-685 584.**| ||**BY ADV SMT.RAJI T.BHASKAR**| ## **OTHER PRESENT:** **SMT. RAJI T.BHASKAR-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1301/2014 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.392/2010 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.3,50,000/-, on account of the injury sustained by the appellant/claimant in a motor accident. 2. It is alleged that the accident occurred on 03.11.2009 at about 6.30 p.m due to hit with a motorcycle bearing Reg.No.KL-2/J 7508 ridden by the second respondent while the appellant was walking through the side of Thodupuzha – Karinkunnam public road. Immediately appellant was taken to Chazhikattu Hospital, Thodupuzha and undergone treatment there. It is alleged that the accident happened due to the rash and negligent riding of the motorcycle by the second respondent. First respondent is the MACA No.1301/2014 3 registered owner of the vehicle and third respondent is the insurer. 3. Before the Tribunal, respondents 1 and 2 remained ex parte. Third respondent filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence from the part of the second respondent is denied. The compensation claimed under various heads are also contended to be excessive and exorbitant. 4. PW1 examined and Exts.A1 to A9 marked from the side of the appellant. Ext.B1 marked from the side of the respondents. 5. Tribunal on evaluating the evidence and facts and circumstances found that the accident happened due to the rash and negligent riding of the motorcycle by the second respondent. First respondent was held vicariously liable for the acts of 2[nd] respondent and third respondent was directed to indemnify the first respondent and a total compensation of Rs.1,88,357/- was awarded. MACA No.1301/2014 4 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, appellant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. Notice as against respondents 1 & 2 was dispensed with at the risk of the appellant. Third respondent appeared through Adv. Smt. Raji T. Bhaskar. 8. Heard the learned counsel for the appellant as well as learned counsel for the third respondent. Lower Court records were called for and perused. 9. According to the learned counsel for the appellant, the appellant is a coolie, aged 60 years, and claimed a monthly income of Rs.5,000/-. But Tribunal notionally taken the income as Rs.3,500/-, which according to him is very low. He would also contend that very serious injuries have been sustained by the appellant and he had undergone inpatient treatment for 45 days at Chazhikattu Hospital and PW1, the doctor, who examined him, issued a disability certificate certifying 13% permanent wholebody disability, but Tribunal arbitrarily fixed MACA No.1301/2014 **==> picture [10 x 8] intentionally omitted <==** the disability at 9% and that has caused prejudice to him. He would also contend that the compensation under the head of pain of suffering, loss of amenities etc are very low and hence seeks for enhancement of compensation on all heads. 10. The learned counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and hence no interference is called for at the instance of this Court in this appeal. 11. The first aspect is with regard to the income of the appellant. It has been found by the Tribunal that the appellant was aged 60 years and is alleged to be a coolie. The accident was in the year 2009. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court taken the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. Following that principles, in Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735] the Apex Court taken the monthly income of a vegetable MACA No.1301/2014 6 vendor in an accident occurred in the year 2008, as Rs.6,500/-. 12. In the present case, since the accident was on 03.11.2009 the monthly income of Rs.5,000/- claimed by the appellant is seems to be reasonable and ought to have been accepted by the Tribunal. Hence the monthly income of the appellant is taken as Rs.5,000/- per month. 13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the injury. Only in serious cases of injury where there is medical MACA No.1301/2014 7 evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. 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. MACA No.1301/2014 8 14. 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). 15. In paragraph No.5 of the above judgment, 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 MACA No.1301/2014 9 expectation of life (shortening of normal longevity). 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. Appellant in this case produced Ext.A5 wound certificate as well as Ext.A7 treatment certificate issued from the hospital where he had undergone treatment. Ext.A5 copy of wound certificate would show that he had sustained (1) contusion over left knee, (2) abrasion over right side of forehead (3) abrasion over nasolabial fold (4) evulsion tooth, fracture alveolus and pain and deformity right hand (6) pain and deformity right leg upper 1/3[rd] (7) lacerated wound 2x1 cm right leg, anterior aspect, X-ray Type II open fracture both bones right leg and fracture alveolus mandible. Ext.A7, the certificate of the doctor who treated him at Chazhikattu Hospitals Pvt. Ltd., Thodupuzha would certify the above MACA No.1301/2014 10 injuries and it is also stated that he had undergone surgery (wound debridement and external fixator application done under spinal anaesthesia] above knee slab, OFMS consultation done applied and treated with antibiotic and analgesics and discharged on 20.11.2009. Again he was admitted on 01.02.2010 and underwent surgery [external fixator removed] and discharged on 08.02.2010. Further admission was on 12.07.2010 and underwent surgery [open reduction and internal fixation and bone grafting for non union proximal end of right tibia under spinal anaesthesia] and discharged on 02.08.2010. It would further state regular reviews were done till 03.12.2011 and advised implant removal surgery and the approximate cost of surgery is also certified to Rs.5,000/-. 17. Ext.A9 is the disability certificate issued by the Consultant Orthopedic Surgeon, Deputy Director, KHS (Rtd), Gokulam, Kavumpady Road, Muvattupuzha. Ext.A9 certificate was proved through examination of PW1, the doctor. PW1 in chief affidavit affirms that the appellant is suffering from the following difficulties: (1) right knee : flexion possible upto 70 – MACA No.1301/2014 11 80 degree from 160 - 170 degree extension 13.%. (2) X-ray right leg taken on 15.10.2013 shows fracture tibia united with widening and irregularity of the fracture site. Fracture fibula malunited and there is cross union with tibia. The percentage of disability with respect to whole body is certified as 13% as per McBride Scale, permanent in nature. 18. During cross examination PW1 stated he had not followed the guidelines issued by Government of India but the suggestion that the movements of knee could be improved by physiotherapy has been stoutly denied by him and he also denies that the disability assessed is on higher side. 19. The Tribunal while fixing the disability, reduced the disability to 9% for the reason that PW1 is not competent to assess wholebody disability of the appellant and hence Ext.A9 disability certificate cannot be relied on to assess the permanent disability of the appellant. But if at all the Tribunal was not satisfied with the medical evidence adduced, it ought to have referred the appellant to a Medical Board to ascertain the genuineness of the assessment of disability without MACA No.1301/2014 12 unilaterally reducing the amount [See: Raj Kumar v. Ajay Kumar and Anr. (2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]. 20. On evaluating the nature of injuries sustained by the appellant as well as the procedures of treatment undergone by him the permanent disability assessed at 13% is not seems to be on higher side and hence I am of the view that 13% disability certified by PW1, the doctor, is only to be accepted. 21. Next is with regard to fixation of compensation. Tribunal already awarded loss of earning for ten months. There is no appeal by the insurer. Hence ten months' loss of earning awarded by the Tribunal is to be maintained. The monthly income has already been fixed as Rs.5,000/-. So refixing the amount of compensation, loss of earning would come to Rs.50,000/- [5,000x10]. Deducting the amount already awarded, balance would be Rs.15,000/- [50,000-35,000]. 22. Next is with regard to the compensation towards permanent disability. It has been found by the Tribunal that MACA No.1301/2014 13 the appellant was 60 years old and that fact is not further challenged. So as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] as approved by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the suitable multiplier would be '9' as applied by the Tribunal. It has already been found that the 13% disability assessed by PW1, the doctor, can be adopted for computing the compensation for permanent disability. So compensation towards permanent disability would be Rs.70,200/- [5,000x12x9x13/100]. Deducting the amount already awarded by the Tribunal, balance would be Rs.39,960/[70,200-30,240]. 23. Next is with regard to compensation towards pain and suffering. Tribunal awarded Rs.25,000/- towards pain and suffering. It seems to be reasonable and no enhancement is required under that head. According to the learned counsel, appellant is an old man and the injuries and the corresponding disability due to the accident caused loss to his amenities to a great extent. Hence compensation towards loss of amenities is MACA No.1301/2014 14 enhanced from Rs.20,000/- to Rs.25,000/-. Then, the balance would be Rs.5,000/ -. 24. In the result appeal allowed and the appellant is allowed to realise enhanced compensation of Rs.59,960/(Rupees fifty nine thousand nine hundred and sixty only) [15,000+39,960+5,000], which will carry interest at the rate of 6.5 % per annum from the date of petition till realisation. The third respondent insurer shall satisfy 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. Appellant 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 learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Sd/- **M.R.ANITHA** **shg JUDGE**