Pankajakshan S/o Balakrishna Pillai v. Mathew S/o Mathew John, John S/o Mathew, National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944** **MACA NO. 430 OF 2013** **AGAINST THE AWARD DATED 09.06.2011 IN OPMV 180/2005 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER:** **PANKAJAKSHAN S/O.BALAKRISHNA PILLAI, VEDIKARANPARAMBU, ANAPARAMBAL NORTH, THALAVADY, ALAPPUZHA.** **BY ADV SRI.R.AZAD BABU** ## **RESPONDENTS/RESPONDENTS:** - **1 MATHEW S/O.MATHEW JOHN, KUTTIYIL KIZHAKKATHIL VEEDU, KOVOOR, KOLLAM 690 538.** - **2 JOHN, S/O.MATHEW, PANAVILAYIL HOUSE, KOLLAM 691 016.** - **3 NATIONAL INSURANCE CO.LTD, HOSPITAL ROAD, KOLLAM 691 001, REP BY ITS BRANCH MANAGER. BY ADV SRI.P.JACOB MATHEW-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 430 of 2013 **2** ## **JUDGMENT** Appellant is the claimant in O.P.M.V No.180/2005 on the file of Motor Accidents Claims Tribunal, Alappuzha. 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/claimant in a motor accident occurred on 19.08.2004 due to hit by car bearing Registration No.KL-3/C-3312 driven by the 1[st] respondent while appellant was driving a car. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent. 2[nd] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. Total compensation of Rs.3,50,000/- has been claimed. 2. Before the Tribunal, respondents 1 and 2 remained exparte. 3[Rd] respondent filed written statement admitting the insurance coverage with respect to the offending vehicle. Rashness and negligence on the part of the 1[st] respondent is denied. It is contended that the accident happened due to the negligence of the appellant/claimant himself and the compensation claimed under various heads are challenged. 3. This case was tried along with OPMV Nos.289/2005 and M.A.C.A No. 430 of 2013 **3** 290/2005. Exts. A1 to A15 were marked from the side of the appellant/claimant. There is no oral evidence from either side. On evaluation of the pleadings as well as documents produced, Tribunal found 1[st] respondent responsible for the accident. Hence the 3[rd] respondent is held liable to indemnify the 2[nd] respondent insured. Tribunal awarded a total compensation of Rs.2,07,186/- under various heads together with interest at the rate of 7.5% per annum. 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 the various grounds stated in the memorandum of appeal. Notice as against 1[st] and 2[nd] respondent dispensed with at the risk of the appellant. Adv.P.Jacob Mathew, the Standing Counsel appeared on behalf of the 3[rd] respondent. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the claimant, injured was a driver earning Rs.5,000/- per month, but the Tribunal taken his annual income as Rs.3,500/- which is very low. It is also contended M.A.C.A No. 430 of 2013 **4** that though claimant sustained very serious injuries and Doctor attached to Medical College Hospital issued a disability certificate certifying 20% permanent disability, Tribunal took disability at 10%. It is also contended that amount awarded towards pain and suffering and extra nourishment etc. are very low. Hence he seeks for enhancement of compensation on above heads. 7. The learned Standing Counsel for the 3[rd] 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. The claimant alleged to be a driver earning monthly income of Rs.5,000/-. There is no evidence to substantiate the allegation. 9. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex 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 M.A.C.A No. 430 of 2013 **5** 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. claimant is alleged to be a driver a skilled worker. Accident itself happened while he was driving the car. So in view of the facts and circumstances, and the dictum laid down in the above decisions, I am of the view that income of Rs.5,000/- claimed by the claimant can very well be accepted since the accident was in the year 2004 and claimant was 42 years driver. 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 have been discussed in detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, M.A.C.A No. 430 of 2013 **6** 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 thereof on the future life of the claimant. 15. Ext.A8 is the O.P. ticket issued from Medical College Hospital, Alappuzha. Ext.A3 is the discharge summary issued from V.S.M. Hospital, Thattarambalam would prove that he was admitted M.A.C.A No. 430 of 2013 **7** on 17.09.2004 and was discharged on 22.09.2004. Diagnosis noted are replacing proximal screws (Cannulated cancellous). Ext.A4 is discharge summary issued from same hospital wherein he had undergone treatment from 10.02.2005 to 14.02.2005 which would show that he was admitted for bone grafting (r) femur case postponed due to infection (r) epididmorchits. Ext.A5 is another discharge summary relating to 17.03.2005 to 24.03.2005. He has non union fracture shaft of femur (r) with gap of Closed Interlock Nailing, admitted for bone grafting. X-ray shows non union Gap shaft of femur right. Ext.A6 is the discharge summary relating to 26.05.2005 to 28.05.2005. He has been admitted for dynamisation Rt femur with bone grafting. History noted as H/o delayed Rt femur union admitted for dynamisation and bone grafting. He had undergone Rt Dynamisation femur and bone grafting done under GA on 27.05.2005. 16. Ext.A7 is the disability certificate issued from Medical College Hospital, Alappuzha describing the injuries sustained by the claimant and certifying 20% whole body disability. The medical records produced from the side of the claimant would prove that he had undergone inpatient treatment for 28 days involving 4 surgeries. M.A.C.A No. 430 of 2013 **8** Tribunal adopted 10% permanent disability since the doctor was not examined. The learned Standing Counsel on the other hand contended that Doctor was not examined and 10% disability adopted by the Tribunal is reasonable and that has to be followed. 17. It is true that the disability certificate issued was not by the Doctor who treated the claimant. But the same was marked without objection from the side of the respondent. As per **Raj Kumar (supra)** , if at all Tribunal is not satisfied with the medical evidence produced from the side of the claimant, Tribunal can refer the claimant to a Medical Board for assessment of disability. That was not done. In view of the nature of injuries and lengthy procedure undergone by the claimant, I am of the considered view that 20% whole body disability certified by the Doctor can very well be adopted. Appellant is a driver by profession. Accident itself happened while he was driving the car. Serious injuries to his right femur will definitely affect the earning capacity of the claimant to a great extent. 20% permanent disability certified by the Doctor can be taken as the functional disability of the claimant. 18. Tribunal awarded loss of earning for 5 months. In view of the nature of injuries and the period of treatment undergone by the M.A.C.A No. 430 of 2013 **9** claimant, loss of earning for 5 months taken by the Tribunal can be approved. So, towards loss of earning, the claimant is entitled to get Rs.25,000/- (5,000x5). Deducting the amount already awarded, the balance would be **Rs.7,500/-** (25,000-17,500). Taking into account the nature of injuries, 28 days inpatient treatment undergone by the claimant, an amount of **Rs.1,500/-** can be awarded towards extra nourishment. Towards the bystander expenses, the Tribunal awarded Rs.1,800/-. It has come out that he had undergone inpatient treatment for 28 days. Hence towards by stander expenses, claimant is entitled to get Rs.150/- per day. On that head, claimant would be entitled to get Rs.4,200/-(150x28). Deducting the amount already awarded, the balance would be **Rs.2,400/-** (4,200-1,800). 19. The proper multiplier to be applied as held in **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 '14'. So, towards permanent disability, the claimant is entitled to get 5,000x12x14x20/100=Rs.1,68,000/-. Deducting the amount already awarded, the balance would be **Rs.1,09,200/-** (1,68,000-58,800). According to the learned counsel, in view of four surgeries and 28 M.A.C.A No. 430 of 2013 **10** days inpatient treatment undergone by him, Rs.30,00/- awarded towards pain and suffering is very low. An amount of Rs.94,386/- has been awarded by the Tribunal as per bills towards medical expenses. Having regard to the facts and circumstances, Rs.50,000/- can be awarded towards pain and suffering. Deducting the amount already awarded, the balance would be **Rs.20,000/-** (50,000-30,000). Hence, the claimant is entitled to get an enhanced compensation of **Rs.1,40,600/-** (One lakh forty thousand six hundred only) (1,09,200+20,000+2,400+7,500+1,500). 20. In the result, claimant is allowed to realize an enhanced compensation of **Rs.1,40,600/-** in this appeal, which will carry interest at the rate of 6% per annum from the date of petition till realization. Respondent No.3 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 364 days. While condoning the delay by order dated 20.12.2021 in CMA.No.1/2013 (CMA.No.506/2013), 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. M.A.C.A No. 430 of 2013 **11** Hence, interest for the period of 364 days is excluded. The disbursement of the amount to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. 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. SD/- ## **M.R.ANITHA** **JUDGE** rps/