Pankaj @ Pankajakshan S/O Gopi Nair v. C. Musthafa & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944** **MACA NO. 901 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1024/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **OTTAPPALAM** ## **APPELLANT/PETITIONER:** **PANKAJ @ PANKAJAKSHAN S/O. GOPI NAIR, MANJEERY HOUSE, P.O. ANAKARA, MELEZHIYAM,, KUMBIDI PALAKKAD DISTRICT. BY ADV SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** - **1 C. MUSTHAFA S/O.A.T. HAMEED,AMBALATHU VEETIL HOUSE, EZHUVANTHIRUTHY, PONNANI, MALAPPURAM DISTRICT.679 577** - **2 JASHEER , AGED 23 YEARS S/O. KUNJAVA, KADAYIL HOUSE, P.O.VATTAMKULAM,, MALAPPURAM DISTRICT.679 578** - **3 UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, WESTERN WING,, AMBADI BUILDING, PONNANI, MALAPPURAM.679 577** **BY ADV SRI.N.S.MOHAMMED USMAN** ## **OTHER PRESENT:** **SRI.N.S MOHAMMED USMAN-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.901/2011 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.1024/2007 on the file of Motor Accidents Claims Tribunal, Ottapalam (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming a total compensation of Rs.2,41,000/- out of injuries sustained by the appellant in a motor accident occurred on 14.05.2007 near Mundur Post Office at about 9 p.m while the appellant was riding a motorcycle bearing Reg.No.KL-52-982, due to hit by car bearing Reg.No.KL-10/G-923 driven by the second respondent. Immediately after the accident the appellant was taken to Edappal Hospital and after giving first-aid, he was referred to West Fort Hospital, Thrissur and admitted there. 2. It is alleged that the accident happened due to the rash and negligent driving of the second respondent . First MACA No.901/2011 3 respondent is the owner of the offending vehicle, third respondent is the insurer. 3. Before the Tribunal, first and second respondents remained exparte. Third respondent alone contested the matter by filing written statement. Policy coverage with respect to the car is admitted. It is also contended that the appellant was not having valid driving licence and hence third respondent is not liable to pay any compensation. The compensation claimed under various heads are also denied. 4. Exts.A1 to A10 marked from the side of the appellant. There was no oral evidence from either side. 5. The Tribunal on evaluating the pleadings as well as the documents held the second respondent, the driver of the car, responsible for the accident. First respondent is held vicariously liable for the acts of the second respondent and third respondent is directed to indemnify the first respondent as per the contract of insurance. A total compensation of Rs.97,800/- was awarded, which was allowed to realise with interest at the rate of 8% per annum from the date of petition MACA No.901/2011 4 till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, appellant is before this Court in appeal for various grounds stated in the memorandum of appeal. 7. Notice as against first and second respondents is dispensed with at the risk of appellant since the third respondent admitted the policy coverage with respect to the offending vehicle. Adv.Sri.N.S.Mohammed Usman appeared on behalf of the third respondent, insurer. 8. Lower court records were called for and perused and both sides were heard. 9. According to the learned counsel for the appellant, appellant is a Cloth Merchant and claimed monthly income of Rs.4,000/-. But the Tribunal notionally taken the income as Rs.3,000/-, which is very low. He would also contend that the appellant had sustained very serious injuries and undergone 23 days inpatient treatment and also undergone surgeries and the doctor attached to Medical College Hospital issued Ext.A7 MACA No.901/2011 5 disability certificate certifying 8% permanent wholebody disability, but no compensation was awarded by the Tribunal under the head of disability. Hence he seeks for compensation on all heads. 10. The learned counsel for the third respondent, insurer, on the other hand would contend that a just and reasonable compensation has already been awarded on all heads and no enhancement is required in this appeal at the instance of this Court. 11. Appellant claims to be a Cloth Merchant and claimed monthly income of Rs.4,000/-. But no evidence as such has been adduced to prove either his occupation or the actual income. 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/-. 12. In the present case, the accident was on 14.05.2007. The appellant was 40 years old at the time of accident. So the monthly income of Rs.4,000/- claimed by the appellant is MACA No.901/2011 6 seems to be reasonable and ought to have been accepted by the Tribunal. Hence monthly income of the appellant is taken as Rs.4,000/-. 13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] 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 MACA No.901/2011 7 result of such injury. 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). 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. 15. 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 MACA No.901/2011 8 Loss of expectation of life (shortening of normal longevity). 16. 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. 17. In the present case, appellant produced Ext.A3 wound certificate dated 14.05.2007 issued from Edappal Hospital Private Limited, Edappal which would prove that the appellant was examined by the doctor at about 9.40 p.m with the alleged history of road traffic accident. The injuries noted are lacerated wound 5x3 c.m skin deep on right leg, pain and suffering on right thigh. X-ray thigh proved fracture femur right. He was referred for better management. Ext.A6 series are the discharge cards issued from West Fort Hospital, Thrissur. Ext.A6(a) show his admission from 15.05.2007 to 25.05.2007 and final diagnosis is noted as closed fracture SOF MACA No.901/2011 9 (R) with lacerated wound right leg. The operation/procedure is noted as IM/IL nailing done ↓ SA. Ext.A6(b) discharge card proves his admission from 02.06.2007 to 08.06.2007 in Westfort Hospital and final diagnosis is subcutaneous infection right thigh with IL/IM nail in situ right thigh. Ext.A6 (c) is another discharge card proving admission from 21.12.2008 to 27.12.2008. Final diagnosis is one year old operated SOF with right IL/IM nail in situ. So the medical records from the side of the appellant would prove his total inpatient treatment for 23 days and procedures of treatment undergone by him. 18. Ext.A7 is the disability certificate issued by Orthopedic Surgeon and Assistant Professor attached to Department of Orthopaedics, Medical College, Trichur. 19. The Tribunal was not inclined to accept Ext.A7 disability certificate for the reason that neither the doctor nor the appellant was examined and hence his disability is found to be not proved. However as per Raj Kumar, referred above, if at all the Tribunal was not satisfied with the medical evidence adduced the Tribunal ought to have referred the appellant to MACA No.901/2011 10 the Medical Board for ascertaining the genuineness of the medical evidence adduced by the appellant. Without doing that, unilaterally refusing to accept the medical certificate in toto is not seems to be reasonable. However, Ext.A7 is not seems to be issued by the doctor who treated him. Doctor was also not examined. Hence taking into account the nature of injuries and the prolonged treatment undergone by the appellant as well as the various procedures of treatment undergone by him, I am inclined to take 6% permanent disability inspite of 8% assessed by the Doctor. 20. As stated earlier, appellant had undergone 23 days inpatient treatment. The injury sustained is to right femur and he had also undergone inpatient treatment on three occasions and the last admission was on 21.12.2008 to 27.12.2008, that is almost 1½ years after the accident. So loss of earnings for three months taken by the Tribunal is not seems to be reasonable and I am inclined to award loss of earnings for four months. So towards loss of earning, appellant is entitled to get Rs.16,000/- [4,000x4]. Deducting the amount already awarded MACA No.901/2011 11 by the Tribunal, balance would be Rs.7,000/ - [16,000-9,000]. The appellant had undergone 23 days inpatient treatment. But the Tribunal awarded only Rs.4,600/- towards bystander expenses. The accident in this case was in the year 2007. Hence, Rs.250/- per day can be taken towards bystander expenses. Hence towards bystander expenses, appellant is entitled to get Rs.5,750/- [250x23]. Deducting the amount already awarded, balance would be Rs.1,150/ - [5,750-4,600]. 21. According to the learned counsel, in view of the serious nature of injuries sustained by the appellant, Rs.15,000/- awarded towards pain and sufferings and Rs.5,000/- awarded towards loss of amenities are very low. Taking into the account the nature of injuries and the period of inpatient treatment undergone by him, an amount of Rs.20,000/- is seems to be reasonable towards pain and suffering. Deducting the amount already awarded, balance would be Rs.5,000/ - [20,000-15,000]. It has already been found that the appellant is entitled to get compensation for 6% permanent disability. The appellant was 40 years at the time of MACA No.901/2011 12 accident. 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 '15'. So compensation towards permanent disability would be Rs.43,200/ - [4,000x12x15x6/100]. Towards loss of amenities, only Rs.5,000/- has been awarded. In view of the fact that the appellant sustained fracture to the femur and undergone lengthy procedures of treatment and permanent disability of 6% suffered by him, an amount of Rs.15,000/- seems to be reasonable towards loss of amenities. So deducting the amount already awarded, the balance would be Rs.10,000/[15,000-5,000]. 22. In the result, the appellant is allowed to realise enhanced compensation of Rs.66,350/[7,000+1,150+5,000+10,000+43,200], (Rupees sixty six thousand three hundred and fifty only) which will carry interest at the rate of 6.5% per annum from the date of petition till realisation (excluding the period of 208 days delay MACA No.901/2011 13 caused in filing the appeal). 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 counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA JUDGE** ## **shg**