Ramakrishnan v Abdul Rahman and United India Insurance Co. 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. 2651 OF 2012** **AGAINST THE AWARD IN OPMV 259/2010 DATED 18.05.2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER IN OPMV:** **RAMAKRISHNAN, S/O VELU, KURUNGULATHKUNNATH HOUSE, AYYAPPAN EZHUTHASSANPADI DESOM, PAINKULAM, CHELAKKARA, THRISSUR. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN** ## **RESPONDENTS/RESPONDENTS IN OPMV:** **1 ABDUL RAHMAN, S/O KUNJEETHU, PUTHENPEEDIKAYIUL HOUSE, DESAMANGALAM, WADAKKANCHERY-678 633. 2 UNITED INDIA INSURANCE CO. LTD. FAIZAL BUILDING, OTTAPALAM-679 101. POLICY NO.101203/31/08/0100012637 VALID FROM 19/03/2009 TO 18/03/2012** ## **SRI.P.JACOB MATHEW- R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2651 of 2012 **2** ## **JUDGMENT** Appellant is the claimant in O.P.M.V No.259/2010 on the file of Motor Accidents Claims Tribunal, Ottappalam. 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 10.02.2010 due to hit with motor cycle bearing Registration No.KL-8A-5684 driven by the 1[st] respondent while he was riding bicycle. The 1[st] respondent is the owner cum driver of the offending vehicle. The 2[nd] respondent is the insurer of the offending vehicle. Total compensation of Rs.3,00,000/- has been claimed. It is alleged that the accident happened due to the rash and negligent riding of the motorcycle by the 1[st] respondent. 2. Before the Tribunal, 2[nd] respondent insurer contested the matter and filed written statement admitting the insurance coverage with respect to the offending vehicle. 3. PW1 was examined and Exts. A1 to A13 were marked from the side of the appellant/claimant. There is no oral evidence from either side. On evaluation of the evidence and facts and circumstances, the Tribunal awarded a total compensation of Rs.41,250/- under various M.A.C.A No. 2651 of 2012 **3** heads together with interest at the rate of 8% per annum. Tribunal found that 1[st] respondent is responsible for the accident and the 2[nd] respondent is held liable to indemnify the insured, 1[st] respondent. 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 various grounds stated in the memorandum of appeal. Notice to the 1[st] respondent has been dispensed with at the risk of the appellant. Adv.P.Jacob Mathew, the Standing Counsel appeared on behalf of the 2[nd] respondent. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 2[nd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the appellant, claimant was working as accountant in a temple and was earning Rs.5,000/- per month, but the Tribunal fixed his monthly income as Rs.3,000/- which is very low. It is also contended that though Ext.A10, certifying permanent whole body disability at 8%, has been marked without objection, Tribunal did not accept the same and no amount was awarded towards disability. Hence he seeks for enhancement of compensation on all heads. M.A.C.A No. 2651 of 2012 **4** 7. The learned Standing Counsel for the 2[nd] 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. The accident was on 10/02/2010. The claimant was alleged to be working as accountant in a temple. He was examined as PW1 and deposed about his occupation and monthly income as Rs.5,000/-. 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/-. 9. 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/-. 10. In view of the facts and circumstances and the evidence of PW1 and the dictum laid down in above decisions, I am of the view that income of the claimant can be taken as Rs.5,000/- per month. M.A.C.A No. 2651 of 2012 **5** ## 11. 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 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. 12. 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 M.A.C.A No. 2651 of 2012 **6** longevity). 13. 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. 14. The injuries sustained by the claimant are “3[rd] and 4[th] meta carpal fracture of Rt. hand and lacerated wound 2cm x 0.5 x 0.5cm Rt. Forehead. Ext.A6 is the discharge card issued from Jeevodaya Mission Hospital, Chelakkara. The diagnosis noted as comminuted fracture of 4[th] and 5[th] metacarpal Rt., hypertension and infaction cerebrum. Ext.A9 is the another discharge card issued from the same hospital which show the date of admission was on 13.07.2010 and the date of discharge was on 14.07.2010 and the diagnosis noted as “Rt. 4[th] metacarpal fracture old and removal of plate and screw”. It is also contended that Ext.A10 disability certificate was marked without any objection and hence Tribunal ought to have accepted the disability assessed by the Doctor. It is true that the disability certificate seems to have been marked without objection. The Doctor who issued the certificate was not M.A.C.A No. 2651 of 2012 **7** examined. The period of treatment undergone by the claimant is only 5 days and he sustained 3[rd] and 4[th] meta carpal fracture of Rt. hand and lacerated wound 2cm x 0.5 x 0.5cm Rt. Forehead. Since the disability certificate has been marked without objection, the course adopted by the Tribunal to discard the same is not legal and proper. If at all the Tribunal is not satisfied with the medical evidence adduced by the claimant, the Tribunal ought to have referred the claimant to a Medical Board (See **Raj Kumar (supra)** ). Without adopting that course, arbitrarily discarding the disability certificate in toto is not seems to be legal and proper. In view of the nature of injuries and period of treatment undergone by the claimant, 8% permanent disability certified by the Doctor seems to be on higher side. Hence 4% is taken as the functional disability since the occupation of the claimant is Accountant in a temple. 15. Tribunal awarded loss of earning for 2 months. In view of the nature of injuries and period of treatment undergone by the claimant as well as taking into account the age of the injured, loss of earning for 3 months is reasonable. So, towards loss of earning, the claimant is entitled to get Rs.15,000/-. Deducting the amount already awarded, the balance would be **Rs.9,000/-** (15,000-6,000). Towards the bystander M.A.C.A No. 2651 of 2012 **8** expenses, the Tribunal awarded Rs.1,200/-. It has come out that he had undergone inpatient treatment for 5 days. Towards by stander expenses, claimant is entitled to get Rs.250/- per day since the accident is on 10.02.2010. On that head, claimant would be entitled to get Rs.1,250/(250x5). Deducting the amount already awarded, the balance would be **Rs.50/-** (1,250-1,200). According to the learned counsel, amount awarded towards pain and suffering and loss of amenities are also very low. Taking into account the nature of injuries, period of treatment and age of the claimant, an amount of Rs.15,000/- can be awarded towards pain and suffering. Deducing the amount already awarded, the balance would be **Rs.7,000/-** (15,000-8,000). Towards loss of amenities, **Rs.5,000/-** is further awarded. 16. Towards permanent disability, the claimant is entitled to get 5,000x12x5x4/100=Rs.12,000/-. Hence, the claimant is entitled to get an enhanced compensation of Rs. **33,050/-** (Thirty three thousand fifty only) (12,000+9,000+7,000+50+5,000). 17. In the result, claimant is allowed to realize an enhanced compensation of **33,050/-** in this appeal, which will carry interest at the rate of 6.5% per annum from the date of petition till realization. Respondent No.2 is directed to pay the enhanced compensation M.A.C.A No. 2651 of 2012 **9** granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 18. The appeal has been filed with a petition to condone delay of 85 days. While condoning the delay by order dated 17.12.2021 in CMA.No.1/2012 (CMA.No.3125/2012), 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 85 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/