P.S. Navab v. U. Rajesh, N.M. Noushad and The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943** **MACA NO. 1559 OF 2012** **AGAINST THE AWARD DATED 24/3/2011 IN OPMV 2936/2006 ON THE FILE** **THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** P.S.NAVAB AGED 28 YEARS S/O.SULAIMAN,18/2220, PAYATHUPARAMBIL,NEAR PYARY JUNCTION, PALLICHAL ROAD,PALLURUTHY,COCHIN-6. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ## **RESPONDENTS/RESPONDENTS:** 1 U.RAJESH S/O USHAKARAN,1/1186, KARUVELIPPADY,COCHIN-5. 2 N.M.NOUSHAD S/O.MOOSA,KALARICKAL VEETTIL, NEAR ANGANVADI,MARAKKADAVU,COCHIN-2. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED EDATHIL BUILDINGS,THOPPUMPADY,COCHIN-5. BY ADV SRI.A.C.DEVY **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.1.2022, THE COURT ON 31.1.2022 DELIVERED THE FOLLOWING:** MACA.No.1559 of 2012 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.2936/2006 on the file of Motor Accidents Claims Tribunal, Ernakulam. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant in a motor accident. 2. It is alleged that on 06.5.2006 at about 6.45 p.m. when the appellant was standing on the northern side of the Thoppumpady-Palluruthy road for crossing the road near Thopppumpady-Pulimoottu Bridge, the offending motor cycle bsearing Reg.No.KL-7/AM-3284 ridden by the 2[nd] respondent in a rash and negligent manner and in high speed came from the west to east and violently hit the claimant, as a result he sustained grievous injuries. He was immediately taken to Gautham Hospital, Kochi, and admitted there as inpatient from 6.5.2006 to 11.5.2006. Thereafter, he continued the treatment. The accident happened due to the rash and MACA.No.1559 of 2012 3 negligent riding of the motor cycle by the 2[nd] respondent which is owned by the 1[st] respondent and 3[rd] respondent is the insurer of the vehicle. Hence, the total compensation of Rs.1,50,000/ (Rupees One Lakhs Fifty Thousand only) has been claimed. 3. Before the Tribunal respondent Nos.1 and 2 remained ex-partie. 4. The 3[rd] respondent/Insurance Company filed written statement admitting the policy coverage with respect to the offending vehicle. It is contented that rider of the vehicle was not responsible in causing the accident and it occurred due to the negligence of claimant. It is further contended that claim under various heads by the claimant is highly excessive and exorbitant. The petition under Section 170 of the Motor Vehicles Act was also filed seeking permission of the court to contest the matter on all terms available to insured and that was also allowed. 5. There was no oral evidence from either side. Exhibits A1 to A8 were marked from the side of the appellant/claimant. Tribunal on evaluating the pleadings and MACA.No.1559 of 2012 4 other materials, fixed a compensation of Rs.87,100/- in total. 6. Dissatisfied with award passed by the Tribunal the appellant/claimant (here in after be referred as claimant) approaches this Court in appeal. 7. It has been found by the Motor Accidents Claims Tribunal (Tribunal in short) that the 2[nd] respondent the rider of the offending vehicle is responsible for causing the accident. Accordingly, the liability was fixed on the 3[rd] respondent insurer. Since the 3[rd] respondent insurer admitted the policy coverage with respect to the offending vehicle during the relevant time, the service of notice to respondents 1 and 2 have been dispensed with at the risk of the claimant before this Court. 8. Lower courts records were called for and perused, both sides were heard. 9. The findings with respect to the negligence on the part of the 2[nd] respondent and the liability of the 3[rd] respondent is not challenged before this Court. The only dispute is with regard to the quantum of compensation awarded by the Tribunal. MACA.No.1559 of 2012 5 10. According to the learned counsel for the appellant, the claimant was 22 years old at the time of accident and was working as store keeper in Choice Sea Foods Company and was having a permanent monthly income of Rs.4,750/(Rupees Four Thousand Seven Fifty only). Hence, the Tribunal went wrong in fixing the notional income at Rs.4,000/- per month with respect to an accident occurred on 06.5.2006. It is also the contention of the appellant that after the filing of appeal, the appellant had undergone surgery for removal of implant and an additional expense of Rs.14,596/(Rupees Fourteen Thousand Five Hundred and Ninety Six only) has been met. 11. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no interference whatsoever is called for in this appeal. 12. The monthly income has been notionally fixed by the Tribunal in the absence of evidence adduced by the claimant. According to the learned counsel for the appellant, the amount of Rs.4,000/- fixed as notional income is very low, MACA.No.1559 of 2012 6 since the accident occurred in the year 2006. 13. In **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if 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. 14. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-08-2008. Claimant was a vegetable vendor MACA.No.1559 of 2012 7 aged about 24 years who sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in Ramchandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 15. The learned counsel also placed reliance on Minu Rout and Anr. vs. Satya Pradyumna Mohapathra and Ors. [2013 O ACJ 2544] where the accident occurred on 08.11.2004 and deceased was a driver and claimed a monthly income of Rs.5,000/-. Tribunal for the reason that no documents were produced to prove the income, taken Rs.3,000/- as monthly income. That was approved by the High Court. But the Apex after finding that the order of High Court is erroneous and suffers from error in law found that salary of the deceased driver ought to have been takes as Rs.6,000/- by MACA.No.1559 of 2012 8 taking notice of the fact that the post of driver is a skilled job. However, the claimant in this case claimed to be a store keeper and the monthly income claimed by the claimant in the claim petition is only Rs.4,750/-. Hence, his monthly income can very well be accepted as Rs.4,750/- claimed by him. 16. According to the learned counsel for the appellant, the amount awarded towards the loss of earning for a period of three months is not just a compensation comparing the injuries sustained by the claimant. 17. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** 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, MACA.No.1559 of 2012 9 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. 18. 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). 19. In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been enumerated. 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 MACA.No.1559 of 2012 10 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 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. 20. In the present case, claimant has not produced any disability certificate. The injury sustained to the claimant is noted as comminuted fracture of both bones of right leg, (as born out from Exhibit A5, wound certificate). Exhibit A6 series are the discharge card issued from the Goutham Hospital; MACA.No.1559 of 2012 11 Exhibit A6(b) would prove his hospitalisation from 06.5.2006 to 11.5.2006; Exhibit A6 (b) would show that he continued the treatment as in patient from 14.5.2006 to 17.5.2006. Exhibit A6 (c) would show further treatment for implant removal from 25.11.2007 to 27.11.007. 21. In this case, the compensation awarded by the tribunal under various heads are as follows: |Compensation allowed at<br>different heads|Amount<br>awarded<br>Rs.| |---|---| |Loss of earnings|12,000-00| |Transportation expenses|1,000-00| |Damage to clothing &<br>articles|500-00| |Extra nourishment|1,000-00| |Medical expenses|25,000-00| |Attendance expenses|2,600-00| |Compensation for pain<br>and sufferings|25,000-00| |Compensation for loss of|20,000-00| MACA.No.1559 of 2012 12 |Compensation allowed at<br>different heads|Amount<br>awarded<br>Rs.| |---|---| |amenities and enjoyment<br>in life|| |Total|87,100-00| 22. In the present case as stated earlier the injury sustained by the claimant is communited fracture of both bones of right leg and he has been treated as inpatient for 13 days at Gautham Hospital. Along with the appeal, the claimant filed I.A. No.1869/2012 for receiving additional documents ie. copy of discharge summary as well as medical bills. Subsequently, I.A. No.1/2022 was also filed along with original discharge summary with respect to an admission for implant removal from 04.4.2011 to 09.4.2011. Accordingly, the additional documents have been marked in appeal as Exhibit A9 and A10 series. Exhibit A9 would prove that claimant had undergone inpatient treatment for 6 days more. So a further amount of bystander expense for 6 days can be granted. That MACA.No.1559 of 2012 13 would come to 250x6=Rs.1,500/-. 23. Though there is a description regarding the implant removal as per Exhibit A6(c), the learned counsel would contend that only a screw was removed during that period and implant was removed as per the discharge summary Exhibit A9. So in view of Exhibit A9 which proves admission from 04.4.2011 to 09.4.2011 for implant removal in connection with comminuted fracture both bones of right leg and the medical bills, Exhibit A10 series for Rs.14,596/- an additional amount of Rs.14,596/- is awarded towards medical expenses in connection with implant removal. 24. In view of the serious nature of injuries sustained by the claimant loss of earnings for three months awarded by the Tribunal will not meet the loss sustained and I am of the view that the loss of monthly income for five months can be granted. Hence, towards loss of earnings the claimant is entitled to get Rs.4,750x5=Rs.23,750/-, out of it the amount already awarded is to be deducted the balance would be Rs.11,750/- (23,750-12,000). MACA.No.1559 of 2012 14 25. The learned counsel has no other claim under other heads. Towards pain and suffering Rs.25,000/-, towards compensation for loss of amenities and enjoyment in life Rs.20,000/- have already been awarded. So, no further enhancement is called for under any other heads. So the claimant is entitled for the enhanced compensation of Rs.14,596 + 11,750 + 1,500 = Rs.27,846/- (Rupees twenty seven thousand eight hundred and forty six only). 26. In the result, the appellant/claimant will be entitled - for enhanced compensation of Rs.27,846/ (Rupees twenty seven thousand eight hundred and forty six only in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition till realisation. The 3[rd] respondent is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment. 27. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.27,846/-** which will carry MACA.No.1559 of 2012 15 interest @ 7.5% per annum from the date of petition excluding the period of delay of 299 days in filing the appeal. The 3 rd 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 MACA.No.1559 of 2012 16 ## **APPENDIX OF MACA NO.1559/2012** ## **PETITIONER'S ANNEXURE** |**Annexure A1**|**MEDICAL BILLS (16 NOS.) SHOWING THE**| |---|---| ||**EXPENSES INCURRED IN THE SURGERY.**| |**Annexure A2**|**DISCHARGE SUMMARY ISSUED BY GOUTHAM**| ||**HOSPITAL, PANAYAPILLY, KOCHI DATED**| ||**09.4.2011.**| |**Annexure A3**|**ORIGINAL OF THE DISCHARGE SUMMARY ISSUED**| ||**BY GOUTHAM HOSPITAL, KOCHI DATED 09.4.2011**| //TRUE COPY// PA TOJUDGE