Praveen v. Sasidharan Nair and The Manager, New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943** **MACA NO. 495 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 220/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT/PETITIONER:** PRAVEEN, S/O VIJAYAN MALIKKAL HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE. BY ADVS. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI ## **RESPONDENTS/RESPONDENTS:** 1 SASIDHARAN NAIR S/O SREEDHARAN NAIR, FANTHANAL HOUSE, PLASSANAL POST, ERATTUPETTA. 2 THE MANAGER NEW INDIA ASSURANCE CO.LTD ETTUMANOOR BRANCH. BY ADVS. SRI.DOMINIC JOHNSON SRI.M.RAJAGOPALAN SRI.VIJU ABRAHAM SRI. M.RAJAGOPALAN-R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.495 of 2010 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (M.V) No.220/2008 on the file of Motor Accidents Claims Tribunal, Pala. 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 (herein after be referred as claimant) in an accident occurred on 06.12.2007 at about 5.30 p.m., which the claimant was riding motorcycle bearing Reg. No.KL-5/B-9719 due to hit with pick up van bearing Reg.No.KL-01/P-6334. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent, owner-cumdriver. 2[nd] respondent is the insurer of the offending vehicle. Total compensation of Rs.1,75,000/- has been claimed. 2. Before the Tribunal, 1[st] respondent remained ex-parte. The 2[nd] respondent insurer filed written statement refuting the allegations in the claim petition regarding age, income and occupation of the claimant. The insurance coverage with respect to the offending vehicle is admitted. But it is contended that 1[st] respondent did not have valid driving license at the time of the MACA.No.495 of 2010 3 accident. Hence, it is a violation of policy conditions and 2[nd] respondent is not liable to indemnify the 1[st] respondent. 3. This case has been tried with O.P (MV) No.227/2008. Exhibit A1 to A13 series were marked from the side of the claimant. Exhibit B1 to B3 were marked from the side of the respondents. The Tribunal on evaluating the pleadings and other materials came to a conclusion that the accident happened due to the rash and negligent driving of the 1[st] respondent and 2[nd] respondent is held liable to pay the amount to the claimant. It is also found that, the 1[st] respondent did not have valid driving license. The insurer can recover the amount from the 1[st] respondent. The Tribunal awarded a total compensation of Rs.1,04,140/-. 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. Adv.M.Rajagopal filed vakalath for the 2[nd] respondent. Heard the learned counsel for the 2[nd] respondent as well as claimant. There was no appearance for the 1[st] respondent. Lower MACA.No.495 of 2010 4 court records were called for and perused. 6. There is no dispute with respect to the finding regarding the negligence of the 1[st] respondent, but the the learned counsel for the 2[nd] respondent would contend that pay and recovery was ordered by the Tribunal, since the 1[st] respondent had no valid driving license during the time of accident, that has to be maintained. 7. According to the learned counsel for the claimant, the claimant was a rubber tapper. But the Tribunal notionally fixed the income as Rs.3,000/- which according to the learned counsel is very low. It is also contended that for computing the loss of earning the Tribunal deducted 1/3 towards personal expenses, that also is illegal. Permanent disability of 10% was certified by the Doctor, but the Tribunal taken only 8% as whole body disability, that also caused prejudice to the claimant. Hence, he seeks for enhancement of compensation on all heads. 8. 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. Hence, no interference is MACA.No.495 of 2010 5 called for at the instance of this Court. 9. With regard to the income the claimant could not produce any documents. 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 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/-. 11. In this case, the accident occurred on 06.12.2007. The claimant was 34 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 can notionally be taken as Rs.6,000/-. MACA.No.495 of 2010 6 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 injury. 13. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary MACA.No.495 of 2010 7 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). 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 MACA.No.495 of 2010 8 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. In this case, claimant produced Exhibit A3 wound certificate issued by Marian Medical Centre, Palai, which would show the following injuries: Laceration in left thigh, Prolapsed Muscle injury on the left thigh, open wound with bleeding, Lacerated wound in 3x2 c.m., X-ray left femur, Type III open Comminuted fracture shaft of left femur. Hence, he was referred to Medical College Hospital, Kottayam. Admittedly, he had undergone inpatient treatment for 52 days. Medical Bills for Rs.29,000/- has been produced. Exhibit A6, discharge card would show that he had treated by wound debridement, Skeleton fraction, 2[0] suture of supportive muscles etc. It would also go to show that he had been under inpatient treatment from 06.12.2007 to 03.1.2008. 17. Exhibit A8 treatment certificate issued from Chazhikattu Hospital, further shows that the claimant had been undergoing treatment from that hospital for the ununited fracture of shaft of left femur sustained due to an RTA on 06.12.2007. The claimant had MACA.No.495 of 2010 9 admitted in that hospital on 25.1.2008 and underwent surgery (open reduction and internal fixation and bone grafting /SA) and treated with antibiotic and analgesics and was discharged on 08.2.2008 with advice to take bed rest at home. Regular review was also recommended. So the treatment records produced from the side of the claimant would prove the inpatient treatment for 52 days. So taking into account the prolonged treatment and various procedures of treatment undergone by the claimant, loss of earnings for 5 months taken by the Tribunal can very well be approved and re-fixing the same towards loss of earnings the claimant is entitled to get Rs.6,000x5=Rs.30,000/-. Deducting the amount already awarded balance would be Rs.20,000/- (Rs.30,00010,000). 18. The incident was in the year 2007. Rs.250/- per day can be taken towards bystander expense Rs.250x52=Rs.13,000/-. Deducting the amount already awarded, balance would be Rs.8,500/- (Rs.13,000-4,500). Towards extra nourishment only Rs.250/- is awarded by the Tribunal. An amount of Rs.3,000/awarded towards extra nourishment. Deducting the amount already MACA.No.495 of 2010 10 awarded balance would be Rs.2,750/- (Rs.3,000-250). 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)]** the suitable multiplier is '16', since, the claimant was 34 years at the time of accident. Permanent disability though assessed as 10%, it is by a single Doctor and Doctor was also not examined. Hence, 8% permanent whole body disability adopted by the Tribunal is only to be approved. Hence, towards permanent disability the claimant is entitled to get Rs.6,000 x 12 x 16 x 8/100=Rs.92,160/-. Deducting the amount already awarded balance would be Rs.59,520/(Rs.92,160-32,640). 19. Towards pain and suffering Tribunal awarded only Rs.18,000/-. It has come out that he had undergone inpatient treatment for 52 days and he has also undergone various procedures of treatment. Hence, towards pain and suffering an amount of Rs.25,000/- is awarded. Deducting the amount already MACA.No.495 of 2010 11 awarded, balance would be Rs.7,000/- (Rs.25,000-18,000). Towards loss of amenities Tribunal awarded Rs.8,000/-. Taking into account the nature of injuries, period of treatment and disability suffered by the claimant loss of amenities is enhanced by Rs.5,000/-. So, the claimant is entitled to get enhanced compensation of Rs.1,02,770/rounded to Rs.1,02,800/- (Rs.20,000 + 8,500 + 2,750 + 59,520 + 7,000 + 5,000). 20. It has been found by the Tribunal, the 1[st] respondent, owner cum driver of the offending vehicle, was not having valid driving license during the time of accident as per Exhibit B2. Since, it is a violation of policy conditions, the insurer is entitled to recover the amount from the owner. So, the pay and recovery ordered by the Tribunal is hereby maintained. (See **Parminder Singh v. New India Assurance Co.Ltd. and Others AIR 2019 SC 3128, Oriental Insurance Co.Ltd. v. Poulose 2015 (1) KLT 682** ). 21. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.1,02,800 /- (Rupees one lakh two thousand eight hundred only)** which will carry interest @ 7.5% per annum from the date of petition ie. 15.4.2008 excluding MACA.No.495 of 2010 12 the period of delay of 191 days in filing the appeal. The 2nd 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