Prajesh v. Sunny K.V. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 18[TH] DAY OF MARCH 2022 / 27TH PHALGUNA, 1943** ## **MACA NO. 3104 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 520/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **OTTAPPALAM** ## **APPELLANT/PETITIONER:** **PRAJESH, AGED 25 YEARS, S/O.ASHOKAN, KOZHIPARAMBIL HOUSE,, VALYALUKKAL, P.O.NEDUPUZHA, VATTAPPONNY,, THRISSUR.** **BY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** - **1 SUNNY K.V., S/O. VARGHESE KANNAMPALLY HOUSE, ALOOR-IRINJALAKUDA, THRISSUR DISTRICT.** - **2 K.S.MANOHARAN S/O.SANKARAN PROPRIETOR, M/S.SIDHA HERBAL, PRODUCTS, PORITHISSERY, IRINJALAKUDA, THRISSUR.** - **3 THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, PALAKKAD, COVER NOTE NO.37206 VALID FROM 8/7/2005 TO, 7/7/2006. BY ADV GEORGE CHERIAN (SR.)** ## **OTHER PRESENT:** ## **SMT K.S SANTHI-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **18.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3104/2009 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.520/2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation of Rs.1,50,000/-, out of injury sustained to the appellant/claimant in a motor accident occurred on 05.04.2006. 2. It is alleged that on 05.04.2006 while the appellant/petitioner was travelling as a pillion rider on motorcycle bearing Reg.No.KL8- AD 7089, jeep bearing Reg.No.KL 8AF 1026 driven by the first respondent, hit on the motorcycle in which the appellant/claimant was travelling, resulting in serious injuries to the appellant/claimant. It is alleged that the accident happened due to the rash and negligent driving of the first respondent, the driver of the jeep, second respondent is the owner and third respondent is the MACA No.3104/2009 3 insurer. 3. Before the Tribunal second respondent, owner of the offending vehicle, remained exparte and a memo has been filed on behalf of the first respondent. Third respondent filed written statement admitting the policy coverage with respect to the offending vehicle. The rashness and negligence on the part of the first respondent is denied and the age, income and occupation of the appellant/claimant is also denied. 4. Exts.A1 to A6 marked from the side of the appellant/claimant. There was no oral evidence from either side. 5. On evaluating the pleadings as well as the documents, Tribunal found that accident happened due to the rash and negligent driving of the first respondent and third respondent insurer was held liable to indemnify the 2nd respondent, insured and awarded a total compensation of Rs.10,300/-. 6. Dissatisfied with the quantum of compensation MACA No.3104/2009 4 awarded by the Tribunal under various heads, the appellant/claimant (hereinafter be referred as the claimant) is before this Court in appeal for the various grounds stated in the memorandum of appeal. 7. Notice as against first respondent is dispensed with. Service is complete as against 2nd respondent. Third respondent appeared through learned Standing Counsel Smt. K.S. Santhi. 8. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the insurer. Lower records were called for and perused. 9. According to the learned counsel for the claimant, the claimant was an Insurance Agent and claimed a monthly income of Rs.5,000/-. But the Tribunal taken the monthly income as Rs.2,500/-, which according to him is very low. He would also contend that the petitioner sustained intercondylar eminence fracture, anterior cruciate ligament injury right abrasion (R) knee. He had undergone inpatient treatment for three days. But only a meagre amount has been awarded by MACA No.3104/2009 5 the Tribunal. 10. Learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded and no enhancement is required at the instance of this Court. 11. Claimant claims a monthly income of Rs.5,000/- and alleges to be an Insurance Agent, no document or other materials could be produced to prove the actual income. 12. In Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court notionally fixed the monthly income of a coolie in the year 2004 as Rs.4,500/-. Following the principles in Ramachandrappa's case, in Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], while dealing with an appeal, which arose out of an accident occurred in the year 2008, in the case of a vegetable vendor, aged 24 years Apex Court, fixed the monthly income notionally as Rs.6,500/-. 13. The accident in this case was on 05.04.2006. MACA No.3104/2009 6 Petitioner was 25 year old at the time of accident. So his monthly income can notionally be taken as Rs.5,000/-. 14. 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 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 MACA No.3104/2009 7 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. 15. 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). MACA No.3104/2009 8 16. In paragraph No.5 of the above decision, 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 trauma, loss of amenities and loss of expectation of life involves determination of lump sum MACA No.3104/2009 9 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. The petitioner in this case produced Exts.A2 wound certificate and Ext.A5 discharge card and Ext.A6 medical bills to prove the injuries and the treatment undergone by him. Ext.A2, wound certificate issued from Sacred Heart Mission Hospital, Pullur, shows that he sustained intercondylar eminence fracture, anterior cruciate ligament injury right, abrasion (R) knee. Ext.A5 discharge card issued from the same hospital shows that he was admitted on 05.04.2006 and was discharged on 07.04.2006. So the treatment records would prove that he had undergone inpatient treatment for 3 days. 18. Taking into account the nature of injuries, the petitioner would be entitled to get loss of income for three months i.e. Rs.15,000/- [5,000x3]. Deducting the amount already awarded by the Tribunal under that head, the petitioner will get Rs. 12,500/ - [15,000-2,500]. 19. According to the learned counsel for the claimant, MACA No.3104/2009 10 towards transportation expenses, extra nourishment and damage to clothing only Rs.1,000/- was awarded. 20. Taking into account the facts and circumstances an amount of Rs.500/- is awarded towards transportation charges, Rs.1,000/- towards extra nourishment and Rs.500/towards damage to clothing. In total, the petitioner will be entitled to get Rs.2,000/- under those heads. Deducting the amount already awarded, the balance would be Rs.1,000/- . [2,000-1,000]. 21. Towards pain and suffering, in view of the injuries sustained as well as the period of treatment undergone by the petitioner, an amount of Rs.15,000/- is awarded. Deducting the amount already awarded, the balance would be Rs.12,000/[15,000-3,000]. Towards loss of amenities, only Rs.1,500/- has been awarded. Taking all the facts and circumstances, an amount of Rs.10,000/- is awarded on that head. Deducting the amount already awarded, the petitioner would be entitled to get Rs.8,500/ - [10,000-1,500]. Towards bystander expenses, only Rs.450/- has been awarded. Petitioner has undergone MACA No.3104/2009 11 three days inpatient treatment. The accident was in the year 2006. So taking Rs.200/- per day, towards the expense of the bystander, claimant is entitled to get Rs.600/- [200x3]. Deducting the amount already awarded, it would come to Rs.150/- [600-450]. 22. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.34,150/[12,500+1,000+12,000+8,500+150] (Rupees thirty four thousand one hundred and fifty only), which will carry interest at the rate of 7.5 % per annum from the date of petition till realisation (excluding the period of 294 days delay 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/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 MACA No.3104/2009 12 learned Standing 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/