Philip P.A. S/o Choorakkuzhy Paily v. P.P. Aboobacker; Shajahan; The United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** **MACA NO. 361 OF 2013** **AGAINST THE AWARD DATED30.05.2011 IN OP(MV) 1588/2004 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** PHILIP P.A. S/O CHOORAKKUZHY PAILY, RESIDING AT PUNNAKUZHIYIL HOUSE, MULLAKKARA, MANNUTHY P.O., THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** 1 P.P.ABOOBACKER S/O PERINGATIL PAREED, RESIDING AT VADACODE P.O., KANGAPADY, KOCHI-682 021. 2 SHAJAHAN S/O PAREED, RESIDING AT ABDUL RAZAK-MAJNA MANZIL HOUSE, KOCHANGADI, KOCHI-683 104. 3 THE UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, 2ND FLOOR, PMS BUILDING, ELOOR ROAD, KALAMASSERY, ERNAKULAM, PIN:683 104. BY ADVS. SMT.P.A.ANEESHA SRI.GEORGE CHERIAN SR. SRI.LALJI P.THOMAS SMT.N.A.NADEERA SRI.PULIKKOOL ABUBACKER SMT.REHANA SHUKKUR SMT.K.S.SANTHI SMT K.S SANTHI-SC-R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.361 of 2013 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (M.V) No.1588/2004 on the file of Motor Accidents Claims Tribunal, Thrissur. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation for the injury sustained by the appellant/claimant in an accident occurred on 23.11.2003 at about 1.00 a.m., due to hit with Tempo Van bearing Reg. No.KLI-3625, while the claimant was travelling in a goods autorickshaw bearing Reg.No.KL-07/AP 818 accompanying the goods near Manali bridge in Thrissur-Chalakudy National Highway. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent, the driver of the tempo van. The 1[st] respondent is the owner of the tempo van and 3[rd] respondent is the insurer. Total compensation of Rs.6,00,000/- has been claimed which is limited to Rs.5,00,000/-. 2. Before the Tribunal, 1[st] and 2[nd] respondents remained exparte. The 3[rd] respondent insurer filed written statement admitting the policy coverage with respect to the offending vehicle. The rashness and negligence on the part of the 2[nd] respondent is denied. MACA.No.361 of 2013 3 It is contended that the accident happened due to the negligent driving of the goods autorickshaw. It is also contended that the driver seat was sharing with other person, that is the only reason for the accident. Hence, 3[rd] respondent is not liable to indemnify the insured. The allegations regarding the age, income and injury sustained are also disputed. 3. This case has been tried with O.P (MV) No.1163/2004. PW1 is examined. Exhibit A1 to A18 series were marked from the side of the claimants. Exhibit B1 is the policy copy marked from the side of the 3[rd] respondent. The Tribunal on evaluating the facts and circumstances and evidence adduced awarded a total compensation of Rs.2,26,000/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 5. Notice was duly served to 1[st] respondent, but there was no appearance. Service of notice to 2[nd] respondent is dispensed with at the risk of the appellant as per order dated 26.11.2021. The 3[rd] MACA.No.361 of 2013 4 respondent insurer appeared through Standing Counsel Adv.K.S.Santhi. Heard the learned counsel for the appellant and also the learned Standing Counsel for the third respondent Insurance Company. Lower court records were called for and perused. 6. According to the learned counsel for the claimant, the claimant was an unloading worker cum salesman and his monthly income is Rs.3,500/-. But the Tribunal notionally fixed the income as Rs.2,500/- which according to the learned counsel is very low. It is also contended that very serious injuries were sustained by the claimant including loss of eye sight of one eye and other fractures. Two disability certificates were produced and PW1, Doctor who issued Exhibit A1 disability certificate was examined. The Tribunal adopted only 36% of disability, which according to him is very low. Exhibit A11 the disability certificate issued by the Orthopedic Surgeon certified 16% permanent whole body disability. So the learned counsel seeks for enhancement of the percentage of disability also. 7. The learned Standing Counsel on the other hand would contend that just and reasonable compensation has already been awarded by the Tribunal on all heads. Though Exhibit A11 disability MACA.No.361 of 2013 5 certificate has been produced, it has not been proved by examining the Doctor. Hence, the Tribunal adopted 36% permanent disability. Hence, no interference is called for at the instance of this Court. 8. The claimant produced Exhibit A17, a job certificate issued by the Manager of Surya Dairy, certifying that he has been receiving a monthly salary of Rs.3,500/-, it has been marked without objection. 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/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if MACA.No.361 of 2013 6 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. 10. In **Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** taking note of the earlier decision in Ramachandrappa's case, 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/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 11. In this case the accident occurred on 02.11.2003. The MACA.No.361 of 2013 7 claimant was 44 years old at the time of accident. Hence, in view of the facts and circumstances and the principles of law laid down in the above cited decisions the monthly income of Rs.3,500/- claimed is reasonable and hence is accepted. 12. The learned counsel relies on **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** wherein 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 (`Act' for short) 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 MACA.No.361 of 2013 8 injury. 13. 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. 14. 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). MACA.No.361 of 2013 9 15. 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. Exhibit A4 is the wound certificate and Exhibit A5 to A8 are the discharge summaries as well as Exhibit A9 is the CT Scan report. Exhibit A12 is the X-ray. Exhibits A13 and A18 series are the Medical bills. 17. After the accident, immediately, the claimant was taken to Jubilee Mission Medical College Hospital and injuries noted as per the wound certificate are Lacerated wound 3x2 cm on the right upper eye lid, Trochanteric Fracture of shaft of right femur, depressed fracture of nasal bone, fracture of maxilla, Lateral wall of orbit, fracture of right zygoma and Fracture of Etmoid bone. He has also rupture of globe of right eye. Repair of right eye suture was done under general anaesthesia. He was discharged on 15.12.2003. There was no vision to right eye at the time of discharge. Again he was admitted on 29.3.2004 and discharged on MACA.No.361 of 2013 10 2.4.2004. He was further treated at Chinmayi Hospital in Oduppi with admission on 08.4.2004 and discharge on 11.4.2004. So, in total he had undergone inpatient treatment for 31 days. Towards medical expenses an amount of Rs.45,635/- has been awarded by the Tribunal. In view of the serious nature of injuries sustained and prolonged treatment undergone by him the loss of earning given for 4 months granted by the Tribunal seems to be very low. It will not be just compensation and I am of the view that loss of income for 6 months can be granted. Towards **loss of earnings** the claimant is entitled to get Rs.3,500x6=Rs.21,000/-. Deducting the amount already awarded the balance would be **Rs.11,000/-** (Rs.21,00010,000). The accident was in the year 2003, so, Rs.150/- per day can be taken towards expense of bystander. Hence, towards **bystander expenses** for 31 days the claimant is entitled to get Rs.150x31=Rs.4,650/-. Deducting the amount awarded the balance would be **Rs.650/-** (Rs.4,650-4,000). 18. The main argument of the learned counsel is with regard to the permanent disability and award of compensation by the Tribunal under that head. Exhibit A1 is the disability certificate issued by Senior Medical Officer of Jubilee Mission Medical College, MACA.No.361 of 2013 11 Thrissur, with respect to Ophthalmic injuries. The Doctor has been examined as PW1 and deposed in line with Exhibit A1 that his right eye is totally blind. But the percentage of disability has not been mentioned. But his evidence that right eye of the claimant is totally blind could not be successfully challenged. So also as per **Raj Kumar** referred above if at all the Tribunal has any doubt about the genuineness of the certificate issued by the Doctor, it is open for the Tribunal to refer the claimant to a duly constituted Medical Board. That has not been done. So the evidence of PW1 that the right eye of the claimant is totally blind is only to be accepted. As per Schedule I Part II of the Workmen's Compensation Act, 1923 then in force percentage of loss of earning capacity due to loss of vision of one eye, without complications or disfigurement of eyeball, the other eye being normal is 30%. Exhibit A11 is the disability certificate issued by the Assistant Professor in Orthopedics, Medical College Hospital, Thrissur, certifying 16% permanent whole body disability. 19. Exhibit A11 has been marked without any objection. But the Tribunal only taken total 36% permanent whole body disability. Actually, if at all the Tribunal is not satisfied with the assessment of MACA.No.361 of 2013 12 disability, he ought to have constituted a medical board as per **Raj Kumar** and the claimant ought to have been referred to medical board for proper assessment of disability as pointed out earlier. However, taking into account the nature of injuries as well as the period of treatment undergone by the claimant, I am of the considered view that 40% permanent whole body disability can be taken. Hence, disability is taken as 40% whole body. 20. **Pappu Deo Yadav v. Haresh Kumar** judgment in Civil Appeal No.2567 of 2020 dated 17.09.2020 of three Judge Bench of Apex Court was relied on to award future prospects. In that decision, two questions arose for consideration. (1) Whether in cases of permanent disablement incurred as a result of motor accident, the claimant can seek apart from compensation for future loss of income amounts for future prospects and also (2) the extent of disability. In paragraph No.12 after discussing various case laws, it was held that High Court clearly erred in holding that compensation for loss of future prospects could not be awarded. In addition to loss of future earnings, the appellant is also entitled to compensation for loss of future prospects at the rate of 40% (following Pranay Sethi principle). In **Erudhya Priya v. State** MACA.No.361 of 2013 13 ## **Express Transport Corporation Ltd. (2020 ACJ 2159: AIR** **2020 SC 4284)** a three Judge Bench of Apex Court awarded future prospects at 50% in the case of an injury sustained by a Software Engineer who suffered 31.1% permanent disability to the whole body. So award of compensation towards future prospects in injury cases where the victim sustained permanent disability has been recognised under law. 21. Hence, the claimant herein also entitled to get proportionate enhancement towards future prospects. The claimant was aged 44 years, so he is entitled for 25% enhancement towards future prospects as per **National Insurance Co.Ltd. V Pranay Sethi and Ors. (2017 4 KLT 662)** . So, the monthly income can be taken as Rs.3,500+875 (25% of 3,500) =Rs.4,375/-. 22. The multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013 (9) SCC 65),** approved by the Constitutional Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '14' since the claimant was 44 years old. So, the compensation towards **future loss of earning power** would be MACA.No.361 of 2013 14 Rs.4,375x12x14x40/100=Rs.2,94,000/-. Deducting the amount already awarded the balance would be **Rs.1,21,200/-** (Rs.2,94,000-1,72,800). 23. As per **Raj Kumar** the claimant who suffered permanent disability is also entitled to get compensation towards loss of amenities. In view of the fact that the claimant lost his eye sight to one eye as well as other Orthopedic disabilities, claimant is entitled to get **Rs.15,000** further towards **loss of amenities.** So, the claimant is entitled to get enhanced compensation of **Rs.1,47,850/-** (1,21,200+15,000+11,000+650). 24. Compensation awarded is tabulated for easy reference as follows: |Compensation on<br>different heads|Amount<br>claimed(Rs.)|Amount<br>awarded<br>by the<br>Tribunal<br>Rs.|Enhancement<br>by this Court| |---|---|---|---| |Loss of earning (Total)|45,000|10,000|11,000| |Loss of earning (Partial)|||| |Medical and<br>Miscellaneous expenses|60,000|45,635|| MACA.No.361 of 2013 15 |Compensation on<br>different heads|Amount<br>claimed(Rs.)|Amount<br>awarded<br>by the<br>Tribunal<br>Rs.|Enhancement<br>by this Court| |---|---|---|---| |Future treatment|3,000||| |Bystander expenses|6,000|4,000|650| |Transportation<br>expenses|4,000|3,000|| |Extra nourishment|4,000|3,000|| |Damage to clothing etc.|500|500|| |Pain and suffering|35,000|30,000|| |Future loss of earning|||1,21,200| |Disability<br>Loss of earning power<br>Loss of amenities<br>Disfigurement<br>Shortened expectancy<br>in total|4,00,000<br>30,000<br>-<br>20,000|1,72,800|15,000| |Total|2,68,935||1,47,850| |Limited to<br>Rounded off to|5,00,000<br>2,69,000||| MACA.No.361 of 2013 16 25. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.1,47,850/- (Rupees one lakh forty seven thousand eight hundred and fifty only)** which will carry interest @ 7.5% per annum from the date of petition excluding the period of delay of 492 days in filing the appeal. The 3rd respondent, Insurance Company, shall satisfy 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 (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