Ramankutty v. Chandrasekhara Marar and National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943** **MACA NO. 1738 OF 2012** ## **OPMV 201/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER** RAMANKUTTY, S/O.GOVINDANKUTTY, KRIPA NIVAS HOUSE, PEZHUMKAD,KIZHAKKUMPURAM, MANNUR (P.O), PALAKKAD DISTRICT. BY ADVS. SRI.K.B.ARUNKUMAR SRI.A.I.FAISAL SRI.RANJIT BABU ## **RESPONDENT/RESPONDENTS** 1 CHANDRASEKHARA MARAR S/O.NEELAKANDA MARAR, SREE VALSAM VEEDU, THOTTAKARA,OTTAPALAM TALUK, PALAKKAD DISTRICT PIN - 679309.(OWNER-CUM-DRIVER OF CAR BEARING REGISTRATIONNO.KL-08 U/733) 2 NATIONAL INSURANCE CO.LTD. KOLLNUR DEVASSY SMART BUILDING ROUND EAST, THRISSUR DISTRICT. PIN - 680 001.(INSURER OF CAR BEARING REGISTRATION NO.KL-08 U/733) BY ADVS. SRI.P.JAYARAM SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 5.1.2022, THE COURT ON 17.01.2022 DELIVERED THE FOLLOWING: MACA 1738 of 2012 2 ## **JUDGMENT** ## **Dated : 17[th] January, 2022** 1. Appellant is the claimant in OP(MV).201/2009 on the file of Motor Accident Claims Tribunal, Ottapalam. Claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injury sustained to the petitioner in a motor vehicle accident occurred on 10.6.2008. In connection with the same Crime No.242/2008 of Mankara Police Station was registered against the 1[st] respondent, driver of the offending vehicle. 2. It is alleged that on 10.6.2008 while appellant/claimant was riding his motor cycle bearing registration No.KL-9U-449 from Pathrippala to Palakkad through public road and reached in front of Chandanapuram Petrol bunk, a motor car bearing registration No.KL-08U-0933 driven by the 1[st] respondent, came rashly and negligently from the opposite direction overtaking another vehicle which was going in front of the car and dashed against the motor cycle ridden by the appellant/petitioner(here in after be referred as petitioner).As a result Petitioner sustained severe injuries and he was taken immediately to Valluvanad Hospital, Ottapalam and treated there as inpatient till 4.7.2008. It is alleged that accident occurred due to the rash and negligent driving of the 1[st] respondent. 2[nd] respondent is the insurer of the offending vehicle. MACA 1738 of 2012 3 3. 1[st] respondent filed written statement denying the whole allegation in the claim petition and stoutly denied the negligence attributed against him. It is also contended that the accident occurred due to rash and negligent riding of the motor cycle by the petitioner. 4. 2[nd] respondent filed written statement raising identical contentions and further admitted the policy coverage with respect to No.KL-08U0933 motor car during the relevant time. It is also contended that the amount of compensation claimed under various heads are highly excessive. The appellant is put to strict proof regarding the age, occupation and income alleged in the claim petition. 5. Claimant got examined himself as PW1 and Exts.A1 to A11 were marked from the side of the claimant. Ext.B1 copy of the driving licence of the 1[st] respondent and Ext.B2 copy of the policy were marked from the side of the respondents. 6. On evaluating the evidence both oral and documentary, adduced from either side, the Tribunal found that the accident occurred due to rash and negligent driving of the car by the 1[st] respondent, the owner-cum-driver of the car. Hence 2[nd] respondent was held vicariously liable to indemnify the insured. Ext.B2 copy of the policy prove that there is valid coverage of the policy on the date of accident and hence the Insurance Company was held liable to pay the compensation. The Tribunal awarded a total compensation of Rs.78,800/- with interest at the rate of 8% per annum from the date MACA 1738 of 2012 4 of petition, ie, 2.3.2009 till the date of realization. Dissatisfied with the award passed by the Tribunal, appellant/claimant (hereinafter referred as claimant) came up in appeal challenging the quantum of amount awarded under various heads. 7. It is contended that though medical bills for Rs.68,274/- was produced only an amount of Rs.41,900/- was awarded towards the medical expenses. It is further contended that the amount awarded towards 'loss of earnings' is insufficient. Towards future medical treatment according to the claimant, an amount of Rs.20,000/ought to have been awarded. Proportionate compensation towards 'pain and suffering', 'loss of earning capacity', 'loss of amenities and conveniences' etc., were also not awarded. According to the claimant, the amount awarded towards 'extra nourishment' is very low. Hence in short, the amount awarded is not commensurate with the gravity of the injury sustained by the claimant, according to the claimant. 8. The learned counsel for the 2[nd] respondent on the other hand, would contend that just and reasonable compensation has been awarded by the Tribunal and no interference is called for at the instance of this Court. It is also her contention that all the admissible medical bills have been taken into account for awarding compensation and only inadmissible bills have been discarded and hence, the counsel for the 2[nd] respondent prays for dismissal of the appeal. MACA 1738 of 2012 5 9. Now the only point for consideration is whether the claimant is entitled for any enhancement of compensation as sought for in this appeal. ## 10. **Raj Kumar v. Ajay Kumar and Another (2011 (1) SCC** **343 = 2010 KHC 5021)** dealt with general principles relating to compensation in injury cases. Paragraph Nos.4 and 5 of the said judgment are relevant to be extracted which read as follows :- 4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) 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 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. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C.K.Subramonia Iyer vs. T.Kunhikuttan Nair - AIR 1970 SC 376, R.D.Hattangadi MACA 1738 of 2012 6 vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467). 5. The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. - (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : - (a) Loss of earning during the period of treatment; - (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) - (iv) Damages for pain, suffering and trauma as a consequence of the injuries. - (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to 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. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much MACA 1738 of 2012 7 difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- 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. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability. 11. So the object of awarding damages is to make good the loss sustained as a result of the wrong done by the opposite party to the extent to which the money can compensated, that too in a fair and reasonable and equitable manner. The courts or the Tribunal have to assess the damages objectively excluding any speculation or fantacy, though some conjecture with reference to disability was held to be permissible and inevitable. A person has to be compensated not only for the physical injury but also for the loss which he suffered as a result of the injury. It is also made clear in paragraph 5 that compensation is awarded in personal injury cases MACA 1738 of 2012 8 under the heads pecuniary damages as well as non-pecuniary damages. 12. So in routine personal injury cases compensation will be awarded only under pecuniary damages (special damages) (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure (ii) as loss of earning during the period of treatment and under general damages for pain and suffering and trauma as a consequence of injuries. 13. In the present case, admittedly the petitioner has not sustained any permanent disability and no certificate to that effect is also produced. But petitioner was examined as PW1 and deposed about the accident and further that due to the incident, his both legs sustained burn injuries and on his back, glass was pierced and injury was sustained. He also deposed that he was hospitalized for 21 days and thereafter thrice in a week for about eight months, he used to go to the hospital in a taxi car for dressing the wounds. Further he treated at Menon Clinic for about 20 days and that treatment is being continued. He was 67 years old at the time of incident. 14. Claimant has got a specific contention regarding the award of Rs.41,900/- towards the medical and miscellaneous expenses though medical bills for Rs.68,274/- have been produced from his MACA 1738 of 2012 9 side. But on examining Ext.P9 medical bills, it would go to show that some of the bills did not contain any seal or initial and without any authentication. So the Tribunal might have omitted those bills for computing the medical expenses. The appellant could not pin point any particular authenticated bill omitted by the Tribunal. Hence all the bills with proper authentication is seen to have been taken into account for calculating the medical expenses. 15. Petitioner has deposed during evidence, that after the discharge from Valluvanad hospital, he continued treatment at Menon Clinic for about 20 days. Medical bills issued from Menon clinic also have been produced, and counted for fixing medical expenses. 16. However, taking into account the long period of inpatient treatment and the follow up treatment undergone by the petitioner at Menon Clinic, an additional amount of **Rs.5000/-** is awarded under the head miscellaneous expenses. 17. Towards 'bystander expenses' an amount of Rs.4,600/- has been awarded. He has been treated as an inpatient for 23 days. Accident is in the year 2008. So Rs.250/- per day can be calculated towards bystander expenses. So compensation under that head would be 250 x 23 = 5750. Deducting the amount already awarded the balance would be Rs.1150/-. But the medical bills and the oral evidence of the petitioner would show that he has been continuing MACA 1738 of 2012 10 treatment even after discharge from Valluvanad hospital. So some additional amount has to be awarded towards 'bystander expenses', since even in house one person might have been engaged for assisting him after discharge from hospital and hence an amount of **Rs.3000/-** is further awarded under the heard 'bystander expenses'. 18. Towards 'transportation expenses', he has claimed Rs.4000/-. But the tribunal awarded Rs.2000/-. The oral evidence of the claimant is that even after discharge, for about eight months he had been going to the hospital for dressing the wounds thrice in a week. Hence, an additional amount of **Rs.2000/-** can be awarded under the head 'transportation expenses'. 19. Towards 'pain and suffering', he claimed Rs.15,000/-, but the Tribunal awarded Rs.10,000/-. The claimant was 67 years of old at the time accident. He had undergone an inpatient treatment for 23 days at Valluvanad hospital and thereafter he continued the treatment at Menon's clinic for about 20 days. Medical bills to prove that fact also had been produced. Injury sustained on his back is due to the piercing or thrusting of glass of the car. His evidence would show that even after discharge from the Valluvanad hospital, he continued treatment and also had been going to the hospital thrice in a week for dressing up the wound. So the facts and circumstances would show that considerable time has been taken MACA 1738 of 2012 11 for healing the wound. So under the 'head pain and suffering', an additional amount of **Rs.7500/-** is awarded to the petitioner. 20. So in total, the claimant is entitled for an enhanced compensation of **Rs.17,500/-** (5000 + 3000 + 2000 +7500). 21. In the result, Appeal allowed in part and the appellant/petitioner is allowed to realize an additional compensation of **Rs.17,500/-** which will carry interest at the rate 7.5% per annum from the date of petition, ie, 2.3.2009, till realization excluding 212 days which is already excluded as per the order in C.M.Appln.2/2012 dated 7.10.2021 of this Court. 22. 2[nd] respondent/insurer shall satisfy the additional amount together with interest within a period of two months from the date of receipt of a certified copy of this judgment. Appellant/petitioner 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 learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. Parties shall bear their respective costs. Sd/- ## **M.R.Anitha, Judge** Mrcs/5.1.22