Raju Kannan v. National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **MACA NO. 2196 OF 2013** **AGAINST THE AWARD DATED 14.06.2013 IN OPMV 1074/2010 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **RAJU KANNAN S/O. KANNAN, VADAKKAKARAYIL HOUSE, VADAKARA PAITTAKULAM KARA, KOOTHATTUKULAM VILLAGE. BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR** ## **RESPONDENT/3RD RESPONDENT:** **THE MANAGER NATIONAL INSURANCE CO. LTD., PALA, PIN-686 575. BY ADV SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2196 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.1074/2010 on the file of Motor Accidents Claims Tribunal, Pala (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injury sustained by the appellant/claimant in a motor accident occurred on 27.07.2010, while he was travelling as the pillion rider on a Scooter bearing Registration No.KL-7/U-8444 through Koothattukulam-Anchelpetty public road due to hit by bus bearing registration No.KL-7/AG-8317 driven by the 1[st] respondent. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent, the driver of the state carriage bus. 2[Nd] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. A total compensation of Rs.3,78,000/- has been claimed which was limited to Rs.2,50,000/-. 2. Before the Tribunal, respondents 1 and 2 remained ex parte. The 3[rd] respondent filed written statement admitting the insurance coverage with respect to the offending vehicle. 3. Claimant was examined as PW1. Exts. A1 to A10 and M.A.C.A No. 2196 of 2013 **3** X1 were marked from the side of the appellant/claimant. On evaluating the evidence and facts and circumstances, the Tribunal found that the accident happened due to the rash and negligent driving of the 1[st] respondent and hence, 3[rd] respondent is held liable to indemnify the 2[nd] respondent. A total compensation of Rs.89,000/was awarded by the Tribunal. 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. Respondent/insurer appeared through Standing Counsel, Adv. Lal K. George. Lower court records were called for and perused. 5. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the respondent/insurer. 6. There is no dispute with regard to the injuries sustained by the claimant and liability of the respondent/insurer. The challenge is with respect to the quantum of compensation awarded by the Tribunal under various heads. According to the learned counsel for the claimant, claimant was a Coolie and he was examined as PW1 and his income was Rs.8,000/- per month. Tribunal has taken his M.A.C.A No. 2196 of 2013 **4** income as Rs.4,000/- per month. That is very low. It is further contended that X1 disability certificate issued by the Medical Board certified 9% permanent disability. But the disability was taken at 5% by the Tribunal. It is further contended that amount of compensation awarded under the other heads are also very low. Hence he seeks for enhancement on all other heads. 7. The learned counsel for the respondent/insurer 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. Claimant was examined as PW1. He filed proof affidavit stating that he was getting the monthly income of Rs.8,000/-. But no documents as such has been produced to prove the income. 9. 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 M.A.C.A No. 2196 of 2013 **5** 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. The accident in this case was on 27.07.2010. As per the principles laid down in the above decisions, the monthly income of the claimant can reasonably be taken as **Rs.7,500/-** . 12. In _**Raj kumar v. Ajay Kumar and Another**_ **(2011 (1) SCC 343 = 2010 KHC 5021),** the Apex Court has elaborately discussed the general principle 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 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. M.A.C.A No. 2196 of 2013 **6** 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 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 claimant produced Exts.A7 to A9 documents to prove injuries sustained by him. Ext.A7 wound certificate would reveal the following injuries: open fracture lateral femoral condyle (right) and fracture patella (right). Ext.A8 is the discharge certificate and Ext.A9 is the discharge card, both are issued from Medical College Hospital, Kottayam. Both documents speak about the same M.A.C.A No. 2196 of 2013 **7** injuries as mentioned in Ext.A7 wound certificate. Ext.A9 discharge card further show that he had undergone wound debridment on 29.07.2010 and he had undergone 6 days inpatient treatment. X1 is the disability certificate issued by the Medical Board certifying 9% disability but the Tribunal was taken disability at 5%. Medical bills for Rs.2,039/- has been produced and the Tribunal awarded Rs.2,250/towards treatment expenses. 16. In view of the serious nature of injuries sustained by the claimant and the procedure undergone by him especially he being a Coolie, loss of earning can be awarded for 5 months. Hence towards loss of earning, the compensation would be Rs.7,500x5=37,500/-. Deducting the amount already granted, the balance would be **Rs.25,500/-** (37,500-12,000). 17. Towards the by stander expenses, Tribunal awarded Rs.1,200/-. It has come out that the claimant had undergone inpatient treatment for 6 days. The accident occurred in the year 2010. So towards bystander expense, the claimant is entitled to get Rs.250/- per day. Hence under the head of by stander expenses, claimant is entitled to get 250x6=1,500. After deducting the amount already awarded, the balance would be **Rs.300/-** (1,500-1,200). The M.A.C.A No. 2196 of 2013 **8** learned counsel further contended that towards pain and suffering only Rs.20,000/- was awarded. Treatment records produced from the side of the claimant would show the gravity of the injuries sustained and surgery undergone by the claimant. So towards pain and suffering, Rs.25,000/- can be awarded. Deducting the amount already awarded, the balance would be **Rs.5,000/-** (25,000-20,000). 18. Next is with respect to the compensation awarded for permanent disability. The claimant was aged 42 years at the time of accident. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '14'. Hence towards permanent disability, the claimant is entitled to get 7,500x12x14x9/100=1,13,400. Deducting the amount already awarded, the balance would be **Rs.79,800/-** (1,13,400-33,600). The learned counsel also contended that no amount was awarded towards loss of amenities. But the Tribunal awarded Rs.16,800/separately towards loss of earning capacity. To avoid duplication, Rs.16,800/- is adjusted towards loss of amenities. In view of the fact that the claimant was a Coolie, he sustained open fracture lateral M.A.C.A No. 2196 of 2013 **9** femoral condyle (right) and having permanent disability at 9%, loss of amenities is refixed as Rs.20,000/-. Deducting the amount already granted, the balance would be **Rs.3,200/-** (20,000-16,8000). No amount was awarded towards damage to clothing. **Rs.750/-** is granted towards damage to clothing. Hence, the claimant is entitled to get enhanced compensation of **Rs.1,14,550/-** (79,800+25,500+300+5,000+3,200+750). 19. In the result, claimant is allowed to realize enhanced compensation of **Rs.1,14,550/-** (One lakh fourteen thousand five hundred and fifty only) in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent/insurer 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 40 days. While condoning the delay by order dated 21.12.2021 in CMA.No.1/2013 (CMA.No.2715/2013), it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 40 days is excluded. M.A.C.A No. 2196 of 2013 **10** 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, within one month from the date of receipt of certified copy of this judgment. SD/- **M.R.ANITHA, JUDGE** rps/