Rajesh Balakrishnan v. Saji Mathew, Francis Augustin, United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** **MACA NO. 2173 OF 2013** **AGAINST THE AWARD DATED 06.07.2013 IN OPMV 28/2011 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **RAJESH BALAKRISHNAN NOW AGED 32 YEARS S/O.BALAKRISHNAN, PUTHENPURACKAL HOUSE, NERIMANGALAM VILLAGE, THALAKODE P O, PIRAKUNNAM KARA, ERNAKULAM DISTRICT, PIN-686693 BY ADVS. SRI.C.M.TOMY SRI.K.J.JOSEMON SRI.MATHEW SKARIA SRI.SUJESH J.MATHEW** ## **RESPONDENTS/RESPONDENTS:** - **1 SAJI MATHEW S/O.MATHEW, KALAPURACKAL HOUSE, POOVARANY P O, KOTTAYAM DIST, PIN-686577** - **2 FRANCIS AUGUSTIN S/O.AUGUSTIN, CHIRACKAL HOUSE, MEENACHIL VILLAGE, KIZHATHADIYOOR KARA, PALA P O, CHETHIMATTOM, KOTTAYAM686575** - **3 UNITED INDIA INSURANCE CO LTD REP BY ITS DIVISIONAL MANAGER, GEETHA TRADE CENTRE, NAGAMPADAM, KOTTAYAM PIN-686001 BY ADV SRI.PMM.NAJEEB KHAN-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2173 of 2013 **2** ## **M.R.ANITHA, J.** **----------------------------------------M.A.C.A No. 2173 of 2013 ----------------------------------------** Dated this the 3[rd] day of March, 2022 ## **JUDGMENT** This appeal has been filed against the award in O.P.M.V No.28/2011 on the file of Motor Accidents Claims Tribunal, Pala (In short 'the Tribunal'). The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained to the appellant in a motor vehicle accident occurred on 19.05.2010 at about 5.00 p.m., while appellant/claimant (here in after be referred as claimant) was riding a motor cycle bearing No.KL-44/1405 through PalaPonkunnam road and reached at Elangulam, a stage carriage bus bearing No.KL-5/E-5904 driven by the 2[nd] respondent came in the same direction hit the motor cycle on which the claimant was travelling, thereby claimant sustained serious injuries. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent, the driver of the bus bearing Registration No.KL-5/E-5904. 1[st] respondent is the owner of the bus and 3 **[rd]** respondent is the insurer **.** 2. Before the Tribunal, 1[st] and 2[nd] respondents remained exparte. The 3[rd] respondent filed written statement admitting the policy M.A.C.A No. 2173 of 2013 **3** coverage with respect to the offending vehicle. It is also contended that the compensation claimed under various heads are excessive. 3. Claimant was examined as PW1 and Exts.A1 to A19 were marked from the side of the claimant. After evaluating pleadings and evidence from both sides, the Tribunal found that the accident occurred due to rash and negligent driving of the 2[nd] respondent and awarded a total compensation of Rs. 2,36,750/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant came up in appeal for the various grounds stated in the memorandum of appeal. Adv.P.M.M.Najeeb Khan appeared on behalf of the 3[rd] respondent. Notice was duly served on respondents 1 and 2 but there was no appearance on behalf of them. Lower court records were called for and perused. Heard the learned Standing Counsel for the 3[rd] respondent as well as the learned counsel for the claimant. 5. Claimant was examined as PW1. According to him, he had been working as Inspector in Amala Gas Agency on contract basis. He deposed that he has taken license for driving Auto Rickshaw. But no documents have produced to prove his income. 6. In **Ramachandrappa v. Manager, Royal Sundaram** M.A.C.A No. 2173 of 2013 **4** ## **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/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. 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. 7. 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 M.A.C.A No. 2173 of 2013 **5** in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganized sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 8. In the present case, accident was occurred on 19.05.2010. Ext.A19 copy of driving license has been produced which would show that he has license to drive Auto Rickshaw. Though he deposed that he was working as Inspector in Amala Gas Agency on contract basis, no documents were produced to substantiate his occupation. Taking into account the totality of the facts and as per the settled principles laid down in the above cited decisions, the monthly income of the claimant can notionally be fixed as Rs.7,500/-. 9. **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620]** was relied in this regard. In that case, Apex Court has elaborately discussed the general principles relating to compensation in injury cases. In personal M.A.C.A No. 2173 of 2013 **6** 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 detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating to 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. 10. 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 longevity). 11. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of M.A.C.A No. 2173 of 2013 **7** expectation of life involves determination of lump sum amount 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. 12. Claimant in this case sustained following injuries; 1) Fracture of right scapula, 2) Fracture of 2nd to 6th ribs right side, 3) Fracture of right zygoma and brachial plexus injury. He was admitted on 19.05.2010 and discharged on 06.06.2010. He had undergone impatient treatment for 28 days. Ext.A8 is the C.T.scan report in which the injuries noted are “zygomatic arch, fracture of the right scapula and fracture of 2nd to 6th ribs on the right side”. Exts.A12 and A13 are Ayurvedic prescriptions issued from the District Ayurvedic Hospital, Thodupuzha. Ext.A14 is the O.P. ticket of District Ayurvedic Hospital, Thodupuzha. So, injuries sustained as well as the period of treatment undergone by him tell upon the seriousness of injuries sustained by him. In view of the inpatient treatment undergone and grievous injuries sustained by him, loss of earning granted for 5 months by the Tribunal seems not sufficient and hence loss of earnings can be granted for 6 months. Loss of earnings for six months will come to Rs.45,000 (7,500x6). Deducting the amount already granted, the balance would M.A.C.A No. 2173 of 2013 **8** ## be **Rs.15,000/-** (45,000-30,000). 13.Taking into account the nature of injuries and period of treatment, towards the extra nourishment, an amount Rs.2,000/- can be granted. Deducting the amount already granted, the balance would be **Rs.1,000/-** (2,000-1,000). Towards damage to clothing, no amount was granted by the Tribunal. Hence under that head, **Rs.800/-** claimed is seems to be reasonable and it is accepted. It has come out that he had under gone inpatient treatment for 28 days. Rs.250 per day can taken towards the bystander expenses since the accident was in the year of 2010. Hence, under the head of by stander expenses, claimant is entitled to get Rs.7,000/- (250x28). Deducting the amount already awarded, the balance would be Rs. **1,400/-** (7,000-5,600). 14. The main contention of the learned counsel is with regard to the disability and compensation awarded by the Tribunal under that head. Ext.X1 disability certificate, issued from MCH, Kottayam has been produced certifying 16% of permanent whole body disability. It is by adding 16%+10%+7%=33%. According to the learned counsel, claimant was examined as PW1 and he would depose about the inconvenience and difficulties being felt due to the injuries caused in the accident. He also deposed that he has difficulties to bend and inhale. M.A.C.A No. 2173 of 2013 **9** Though claimant is working as Inspector in Amala Gas Agancies on contract basis, claimant produced Ext.A19 copy of driving license issued in his name to drive light motor vehicles and he also deposed that he has taken license for driving autorickshaw and due to the disability, he cannot do the work of a driver. So evidence of PW1 would go to show that the accident and resultant injuries caused functional disability to the claimant to a great extent. 15. The Tribunal also discussed about the disability in Paragraph 14 of the award and found that injuries will reduce the earnings capacity of the petitioner and his work as Inspector in the Amala Gas Agency. Hence taking into the totality of the facts and circumstances, permanent whole body disability can be taken as 25%. So towards permanent disability, the claimant will be entitled to get Rs.7,500x12x17x25/100=3,82,500/- **.** Deducting the amount already awarded, the balance would be **Rs.2,29,500/-** (3,82,500-1,53,000). 16. As per **Raj Kumar** (Supra), in view of the permanent disability sustained by the claimant, he is also entitled to get compensation for loss of amenities. Taking into account the nature of injuries and treatment undergone by the claimant, **Rs.15,000/-** can be further granted towards loss of amenities. Hence, the claimant is M.A.C.A No. 2173 of 2013 **10** entitled to get an enhanced compensation of **Rs.2,62,700/-** (Two lakhs sixty two thousand seven hundred only) (2,29,500+1,400+15,000+800+1,000+15,000). 17. In the result, claimant is allowed to realise enhanced compensation of **Rs.2,62,700/-** in this appeal, which will carry interest at the rate of 7.5% 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 a certified copy of this judgment. 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, within one month from the date of receipt of certified copy of this judgment. Sd/- **M.R.ANITHA JUDGE** rps/