RadhaKrishnan v. Antony Joseph, K.C. Ramachandran Nedumbillil, and The Manager National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **MACA NO. 1723 OF 2014** **AGAINST THE AWARD DATED 31.08.2013 IN OPMV 114/2007 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR.** ## **APPELLANT/PETITIONER:** **RADHAKRISHNAN, AGED 50 YEARS, S/O.NARAYANAN NAIR, IRUMBAL HOUSE, NORTH MAZHUVANNOOR686689.** ## **BY ADV SRI.V.A.AJAI KUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 ANTONY JOSEPH S/O.A.JOSEPH, EZHUTHIL HOUSE, PEZHUMKAVALA, KATTAPPANA P.O., IDUKKI DIST., 685508.** **2 K.C.RAMACHANDRAN NEDUMBILLIL HOUSE, KODANADU P.O., KOOVAPPADY, PERUMBAVOOR-683544.** **3 THE MANAGER NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE P.O., BOX NO.157, 1ST FLOOR, PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, QUILON 691001.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **SRI.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1723/2014 2 ## **JUDGMENT** Appellant is the claimant in O.P.M.V No.114/2007 on the file of Motor Accidents Claims Tribunal, Perumbavoor. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant/claimant in a motor accident occurred on 18.11.2006 due to hit by bus bearing Registration No.KL-02 U 2454 at MES curve Vazhakkulam driven by the 1[st] respondent, while appellant was travelling in a jeep bearing Registration No.KLI/822. It is alleged that the accident happened due to the rash and negligent driving of the bus by the 1[st] respondent. The 2nd respondent is the owner of the bus. The 3rd respondent is the insurer. Total compensation of Rs.15,56,000/- has been claimed, which is limited to Rs.12,00,000/-. 2. Before the Tribunal, the owner and driver of the bus and the owner cum driver of the jeep remained absent. Insurers of both vehicles are one and same and filed written statement admitting the incident and policy coverage with respect to the vehicles. But liability is denied since case has been changed under Sections 304, 308 of IPC against the 1[st] respondent and hence there is no vicarious liability. This case was tried along with OPMV Nos.2101/2006, 2144/2006, 2176/2006, 113/2007, MACA No.1723/2014 3 128/2007, 129/2007, 133/2007, 154/2007, 155/2007 and 531/2007 and a common award was passed. 3. Exts. A1 to A32 were marked from the side of the appellant/claimant. There is no oral evidence from either side. On evaluation of the pleadings as well as documents produced from either side, Tribunal found that 1[st] respondent/driver of the bus is responsible for the accident, hence the 3[rd] respondent is held liable to indemnify the 2[nd] respondent insured. Tribunal awarded a total compensation of Rs.2,19,195/- under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant (hereinafter be referred as claimant) approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Service of notice to respondents 1 and 2 has been dispensed with since there is complete coverage of the policy with respect to the offending vehicle. Adv.P.Jacob Mathew, the Standing Counsel appeared on behalf of 3[rd] respondent. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the claimant, claimant was driver of the jeep and he claimed to be engaged in cultivation and business of pineapple and his monthly income was Rs.5,000/-. But the MACA No.1723/2014 4 Tribunal taken the income as Rs.3,500/- which is very low. It is also contended that the amount awarded under other heads are very low. Hence he seeks for enhancement of compensation on all heads. 7. 3rd respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 8. Along with the appeal, claimant produced medical bills worth Rs.4,430/-. I.A.No.3821/2014 filed to receive the additional documents has been heard along with appeal and allowed. Additional documents were marked as Exts.A33, A34 and A35(series). Hence claimant is entitled to get **Rs.4,430/-** in addition as treatment expenses. 9. The first aspect is with regard to the income of the claimant. 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 v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , 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 the present case, the accident was occurred in the year MACA No.1723/2014 5 2006. Claimant was 44 years of age. Hence monthly income of **Rs.5,000/-** claimed is quite reasonable as per the settled position of low and is hereby accepted. 12. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) Apex court has elaborately discussed the general principles relating to compensation in injury cases. 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. 13. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (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 MACA No.1723/2014 6 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. During the pendency of the appeal, claimant filed I.A No.3877/2014 seeking for referring him to a Medical Board since no disability certificate has been produced before the Tribunal. That I.A was allowed and appellant was referred to Medical Board and certificate of Medical Board is marked as Ext.C1. In Ext.C1, medical Board certified 12% whole body permanent disability. 16. Claimant sustained following injuries; 1) Fracture of midshaft femur. 2) Fracture to 2[nd] to 7[th] ribs. 3) Fracture left clavicle. 4) Fracture right olecranon. 5) Lacerated wound right elbow. 6) Oedema and tenderness of left ankle. 17. Tribunal awarded loss of earning for six months. It has come out that he had undergone inpatient treatment for 25 days. In view of the nature of injuries and the period of treatment undergone by the claimant, loss of earning taken by the Tribunal for six months can be approved. So, towards loss of earning, the claimant is entitled to get Rs.30,000/- (5,000x6). Deducting the amount already awarded, the MACA No.1723/2014 7 balance would be **Rs.9,000/-** (30,000-21,000). Towards the bystander expenses, the Tribunal awarded Rs.3,750/-. Since the accident was in the year 2006, towards by stander expenses, claimant is entitled to get Rs.200/- per day. On that head, claimant would be entitled to get Rs.5,000/-(200x25). Deducting the amount already awarded, the balance would be **Rs.1,250/-** (5,000-3,750). 18. The appellant was 44 years old at the time of accident. The proper multiplier to be applied as held in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** . followed by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '14'. So the compensation towards permanent disability would be 5,000x14x12x12/100= **1,00,800/-.** 19. In the result, claimant is allowed to realize an enhanced compensation of Rs.1,15,480/- (1,00,800+4,430+9,000+1,250) rounded to **Rs.1,15,500/-** (One lakh fifteen thousand five hundred only) in this appeal, which will carry interest at the rate of 6% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced 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. 20. The appeal has been filed with a petition to condone delay of 106 days. While condoning the delay by order dated 12.08.2014 in CMA.No.1963/2014, it was made clear that, in case any enhancement MACA No.1723/2014 8 of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 106 days is excluded. 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 Standing Counsel for 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** rps/ MACA No.1723/2014 9 ## **APPENDIX OF MACA 1723/2014** ## **PETITIONER ANNEXURE** **EXHIBIT A33 CT SCAN ISSUED FROM MODEL MEDI DIAGNOSTIC CENTRE PRIVATE LIMITED DATED 18.11.2006. EXHIBIT A34 PHYSICAL THERAPY REQUEST EXHIBIT A35 SERIES MEDICAL BILLS**