P.T. Musthafa v. Ramachandran, K.K. Mohammed Kutty and United India Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944** **MACA NO. 2074 OF 2012** **JUDGMENT DATED 12/12/2011 IN OP(MV) 691/2008 ON THE FILE OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/PETITIONER:** P.T.MUSTHAFA AGED 34 YEARS S/O.KUNHAHAMMED HAJI, MUSSALI PARAMBIL HOUSE, CHENDAPURAYA, A.R.NAGAR P.O., MALAPPURAM DISTRICT. BY ADVS. SRI.K.ABDUL JAWAD SMT.K.S.HASEENA ## **RESPONDENTS/RESPONDENTS:** 1 M.RAMACHANDRAN S/O.NARAYANAN, MAPPILASSERI HOUSE, KUZHIMANNA P.O., MALAPPURAM DISTRICT (DRIVER)-676505. 2 K.K.MOHAMMED KUTTY S/O.MOIDEENKUTTY, KAKUNKUZHIYIL HOUSE, KAVANOOR P.O., AREACODE VIA, MALAPPURAM DISTRICT.(OWNER)-676505. 3 UNITED INDIA INSURANCE COMPANY LIMITED ARAFA BUILDING, COURT ROAD, MANJERI-676505. BY ADVSRI.PMM NAJEEB KHAN - R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.2074 OF 2012 2 ## **JUDGMENT** Dated this the 24[th] day of May, 2022 This appeal has been filed against the award passed in O.P.(M.V) No.691/2008 on the file of Motor Accidents Claims Tribunal, Manjeri (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation due to the injury sustained by the appellant/claimant (hereinafter be referred as the claimant). 2. Accident was occurred on 20.11.2006 at about 5.00 p.m., while the claimant was riding a motorcycle bearing Reg.No.KL10/K8533, due to hit by lorry bearing Reg.No.KRM 1684. The claimant sustained serious injuries. It is alleged that accident happened due to the rash and negligent driving of the 1[st] respondent. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. The claim is for a total amount of Rs.2,41,000/which is limited to Rs.2,00,000/-. MACA NO.2074 OF 2012 3 3. Before the Tribunal, 1[st] and 2[nd] respondents remained exparte. 3[rd] respondent alone filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence on the part of the 1[st] respondent is denied. 4. Exhibits A1 to A7 series and X1 marked from the side of the claimant. There was no oral evidence from either side. Tribunal on evaluating the pleadings and documents, came to a conclusion that 1[st] respondent was responsible for the accident. 2[nd] respondent is held vicariously liable for the acts of the 1[st] respondent. 3[rd] respondent/insurer is held liable to indemnify the 2[nd] respondent/insured. The Tribunal awarded a total compensation of Rs.1,07,413/-. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 6. Notice to 1[st] respondent is complete and service of notice on the 2[nd] respondent is dispensed with. Adv.P.M.M. Najeeb Khan, appeared on behalf of the 3[rd] respondent/insurer. Heard the learned MACA NO.2074 OF 2012 4 counsel for the claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. 7. According to the learned counsel for the claimant, the claimant was a manual labourer aged 34 years. He claimed monthly income of Rs.5,000/-. But the Tribunal taken the income notionally as Rs.3,000/-, which according to her, is very low. She would also contend that the claimant sustained crush injury to the right big toe and injury to right knee due to the accident. The claimant had undergone surgery after 3 years of the accident in 2009. But the Tribunal refused to grant any compensation on account of the treatment undergone in the year 2009. She would also contend that compensation awarded under the head of pain and suffering is very low and no compensation has been awarded towards loss of amenities. 8. The learned Standing Counsel for the insurer, on the other hand, would contend that a just and reasonable compensation has been awarded by the Tribunal and no interference is called for at the instance of this Court. MACA NO.2074 OF 2012 5 9. The first aspect is with regard to the monthly income of the claimant. He is claimed to be a daily labourer and claimed monthly income of Rs.5,000/-. No evidence whatsoever has been adduced to prove the income. In **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** , the Hon'ble Apex Court has notionally taken monthly income of a coolie in an accident occurred in the year 2004 at Rs.4,500/-. 10. In the present case, since the claimant was 34 years old and the accident was in the year 2006, monthly income of Rs.5,000/claimed seems to be reasonable and can be accepted. 11. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** 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 MACA NO.2074 OF 2012 6 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 the injured has suffered as a result of such injury. 12. 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. MACA NO.2074 OF 2012 7 13. 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). 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. The main argument of the learned counsel is with regard to the refusal of granting any amount by the Tribunal on account of the treatment undergone in the year 2009 to the right knee. On going through the award passed by the Tribunal there is a finding MACA NO.2074 OF 2012 8 that as per Ext.A2 wound certificate, the claimant sustained crush injury on the right big toe and it was amputated. He was discharged on the same day as could be seen from Ext.A4 discharge summary. But Ext.A3 series, prescriptions with respect to consultations and subsequent treatment for PCL injury with lateral collateral ligament tear of right knee, were not considered by the Tribunal, for the reason that it is not indicated in Ext.A4. Ext.A7 series medical bills, indicate that he had spent Rs.74,665.61/- for his treatment. The Tribunal awarded only Rs.8,793/- for the bills covered for the period 2006-2007. 16. Ext.A5 is the charge sheet filed on 16.10.2006 by Sub Inspector of Police, Kondotty, in which specific descriptions of the accident and injury sustained by the appellant to knee due to hit and fall from the motorcycle has been stated. 17. Ext.A4 discharge summary issued from Baby Memorial Hospital dated 21.11.2006, would go to show that the diagnosis was crush injury right big toe. Surgery of terminalisation right big toe at level of MTPJ under L/A is also noted. Even in that discharge MACA NO.2074 OF 2012 9 summary, there is specific mention with respect to pain and tenderness on right knee joint and it is further stated in Ext.A4 that he was seen by Orthopedic Surgeon, Dr.Muraleedharan. Patient had minimal haemarthrosis. Hence, given compression bandage. X-ray showed no bony injury. It was explained to the patient that he needs re-assessment to rule out internal derangement of knee. That would go to show that even at the time of first preparation of discharge certificate Orthopedic Surgeon taken note of chances for internal derangement of knee. 18. Ext.A4(a) discharge summary issued from Baby Memorial Hospital shows that treatment was undergone by the claimant from 11.11.2009 to 15.11.2009. The diagnosis is PCL injury with lateral collateral ligament tear (RT) knee. The procedures are stated as Arthroscopic PCL Reconstruction with Semitendinosus Graft, LCL Reconstruction with Gracilis Graft (Percutaneous). It is further stated that he was admitted with complaint of pain, instability of right knee for the past 3 years, history of alleged road traffic accident 3 years back on 20.11.06, sustained injury to right knee and crush injury right great toe, underwent terminalisation of right big toe. MACA NO.2074 OF 2012 10 Investigation for MRI of right knee: Medial meniscus posterior horn tear. Posterior cruciate ligament tear. So Ext.A4(a) would clearly indicate that injury is in connection with the RTA occurred 3 years back and there is mention regarding injury to right toe as well as to right knee out of RTA on 20.11.2006. 19. Even though the Tribunal was not pleased to accept the treatment undergone in the year 2009 as well as the medical bills of those treatment, the Tribunal taken into account 12% permanent disability for computation of compensation under the head of permanent disability. It is to be noted that Ext.X1 disability certificate issued by the Medical Board has specific reference with respect to PCL injury with Lateral Collateral Ligament Tear right knee also. So after taking the permanent disability at 12% for computation of compensation under the head of disability, the Tribunal went wrong in refusing to award compensation for the treatment undergone by the claimant for right knee and surgery undergone. 20. So, I am of the considered view that the injury sustained to the right knee of the appellant and surgery undergone by him is in MACA NO.2074 OF 2012 11 continuation or in connection with RTA occurred in the year 2006. Hence, claimant is entitled to get expenses of treatment and surgery undergone by him in the year 2009. Ext.A7 medical bills is for a total amount of Rs.74,665.61/-, out of which Rs.8,792/- has already been awarded by the Tribunal. So the balance amount towards medical expenses would be Rs.65,873.61/-. 21. No amount is seen awarded towards bystander expenses. Ext.A4(a) would show that he had undergone 4 days inpatient treatment in the year 2009. Hence Rs.250/- per day can be taken as bystander expenses. That will come to Rs.1,000/- (Rs.250x4). 22. It has already been found that the Tribunal adopted 12% permanent disability for computing compensation under the head of permanent disability. Monthly income of the claimant has already been taken as Rs.5,000/-. The claimant was 34 years old at the time of accident. The proper 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 MACA NO.2074 OF 2012 12 ## **National Insurance Company Ltd. v. Pranay Sethi [2017 (4)** **KLT 662 (SC)]** is '16' as rightly taken by the Tribunal. Re-fixing the amount towards permanent disability the amount would be Rs.1,15,200/- (Rs.5,000 x 12 x 16/100). Deducting the amount already awarded, balance would be Rs.46,080/- (Rs.1,15,20069,120). 23. Loss of earning for 3 months has been awarded by the Tribunal. According to the learned counsel due to the PCL injury with lateral collateral ligament tear right knee, the claimant could not do any work for a long time of one year. Hence, loss of earning of 4 months can be granted instead of 3 months taken by the Tribunal. That will come to Rs.20,000/- (Rs.5,000x4). Deducting the amount already awarded, balance would be Rs.11,000/- (Rs.20,000-9,000). 24. Towards pain and suffering Tribunal awarded Rs.10,000/which according to the learned counsel is very low. It has come out that the right big toe of the appellant has been amputated. He was a manual labourer and he has also undergone PCL surgery for ligament injury sustained to the right knee. Hence Rs.20,000/- seems to be MACA NO.2074 OF 2012 13 reasonable towards pain and suffering. Deducting the amount already awarded, balance would be Rs.10,000/- (Rs.20,000-10,000). 25. No amount is seen awarded towards loss of amenities. Being a manual labourer loss of big toe as well as the ligament injury to the right knee would cause inconvenience and hardship to him in his day to day life. So towards loss of amenities an amount of Rs.15,000/- can be awarded. Hence, the claimant is entitled to get enhanced compensation of Rs.1,48,952.61/- (Rs.11,000+ 65,872.61 + 1,000 + 10,000 + 46,080 +15,000) rounded off to Rs.1,49,000/- 26. In the result, appeal allowed by enhancing compensation to an amount of **Rs.1,49,000/(Rupees one lakh forty nine thousand only)** which will carry interest @ 6% per annum from the date of petition excluding the period of delay of 160 days in filing the appeal. The 3rd respondent/insurer 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, deducting the amount due towards balance court fee from the claimant. MACA NO.2074 OF 2012 14 27. The disbursement of enhanced compensation to appellant/claimant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Claimant 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 Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. ## **Sd/-** **M.R.ANITHA JUDGE** SMF