Rembha v. Pandithurai, Pallavarajan and The New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944** **MACA NO. 2771 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 2083/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **THRISSUR** ## **APPELLANT/PETITIONER** **REMBHA,W/O. LATE DIVAKARAN, PULINKUZHI HOUSE,PUTHUR P.O., THRISSUR BY ADVS. SRI.C.HARIKUMAR SMT.ANUROOPA JAYADEVAN SRI.VIPIN VARGHESE** ## **RESPONDENTS/RESPONDENTS:** - **1 N.PANDITHURAI, 13A SOUTH KRISHNAN KOIL, 1ST STREET, MADURAI, TAMIL NADU STATE 625 001.** - **2 PALLAVARAJAN S/O.VENKITTASWAMI, PILLAYARKOIL STREET,NIRATHAN, VADIPETTI, MADURAI,TAMIL NADU 625 001.** - **3 THE NEW INDIA ASSURANCE COMPANY LTD. MADURAI, TAMIL NADU 625 001. BY ADV PREMCHAND M.** ## **OTHER PRESENT:** **SRI. PREMCHAND. M - R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2771/2012 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.2083/2005 on the file of Motor Accidents Claims Tribunal, Thrissur (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming a total compensation of Rs.4,00,000/- out of injuries sustained by the appellant in a motor accident occurred on 17.04.2005 at about 3.30 p.m due to hit by tempo trax bearing Reg.No.TN 58-H-7690 while she was riding on pillion of a motorcycle bearing Reg.No.KL-8-F301 at Kuthiran in Thrissur-Palakkad National Highway. Immediately she was taken to Jubilee Mission Medical College Hospital, Thrissur and treated there. 2. It is alleged that the accident happened due to the rash and negligent driving of the second respondent, the driver of the tempo trax. First respondent is the owner, third respondent is the insurer. MACA No.2771/2012 3 3. Before the Tribunal, first and second respondents remained exparte. Third respondent filed written statement admitting the policy coverage with respect to the tempo trax bearing Reg.No.TN 58-H-7690 but rashness and negligence on the part of the second respondent is denied. 4. Exts.A1 to A9 series marked from the side of the appellant. There was no oral evidence from either side. 5. The Tribunal on evaluating the pleadings as well as documents found that the second respondent is responsible for the accident and first respondent is held vicariously liable for the acts of the second respondent and third respondent insurer is directed to indemnify the first respondent, insured. A total compensation of Rs.86,530/- was awarded, which was allowed to realise with interest at the rate of 8% per annum from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, appellant is before this Court in appeal for various grounds stated in the memorandum of appeal. MACA No.2771/2012 4 7. Adv. Premchand M., appeared on behalf of the third respondent, insurer. Notice against 1st respondent dispensed with. Service is complete as against 2nd respondent. But there was no appearance. Heard the learned counsel for the appellant as well as the learned counsel for the third respondent. Lower court records were called for and perused and both sides were heard. 8. According to the learned counsel for the appellant, appellant is a Homemaker and claimed monthly income of Rs.4,000/-. But the Tribunal taken the income as Rs.3,000/- per month, which, according to her, is very low. She would also contend that Ext.A7 disability certificate has been marked without objection in which the doctor certified permanent disability at 7%. But the Tribunal taken only at 4% for computation of disability compensation. Hence she seeks for enhancement of compensation on all heads. 9. Learned counsel for the third respondent on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and MACA No.2771/2012 5 hence no interference is called for at the instance of this Court in this appeal. 10. With regard to the income, the appellant claimed Rs.4,000/- as monthly income and she claimed to be a house wife, doing tailoring. Since the accident in this case occurred in the year 2005, monthly income of Rs.4,000/- claimed is seems to be reasonable and is only to be accepted especially because in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court taken the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. 11. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988 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 MACA No.2771/2012 6 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. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 12. 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 MACA No.2771/2012 7 and trauma as a consequence of the injuries. 13. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (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. In the present case appellant produced Ext.A2 wound certificate and Ext.A6 discharge summary issued from Jubilee Mission Medical College Hospital, Thrissur. Ext.A2 would show that appellant sustained degloving injury popliteal MACA No.2771/2012 8 fossa (R) knee, abrasion poplited area (R) knee, deep abrasion ( L) lower chest. 16. Ext.A6 discharge summary would show that she had undergone inpatient treatment from 17.04.2005 to 24.05.2005 for degloving injury, popliteal fossa (R) knee and Fat liquefaction in lumber region. She was treated with debridement and skin grating also has been done. Ext.A7 is disability certificate of Orthopaedic Surgeon, Department of Orthopaedics, Medical College, Trichur wherein the doctor noted that she had got skin grafted area in poplited area (10x10cm), there is loss of sub cutaneon tissue in poplited area; ugly scar in donor site (skin grafted donor site) and mild stiffness of (R) knee joint. Permanent disability (for whole body) is assessed as 7% as per Mc Bride scale. The Award would further go to show that the appellant appeared before the Tribunal and she complained of pain and tribunal noted healed fractured wound and loss of muscle on leg and a heavy scar and loosening of skin. For the reason that the doctor was not examined, as per the discharge summary as well as the MACA No.2771/2012 9 wound certificate, the tribunal taken only 4% whole body disability. But it has come out in evidence that she had undergone 37 days inpatient treatment whereas the Tribunal taken it as 8 days. She had also undergone treatment with wound debridement and skin grafting. Tribunal also noted that she had complained of pain even at the time of appearance before the Tribunal and there was heavy scar and loss of skin. So taking into account all those factors, permanent disability suffered by the appellant can be taken as 5% instead of 4% taken by the Tribunal. So compensation can be re-fixed as follows: 17. Towards loss of earning, Tribunal awarded three months loss of earning. But the inpatient treatment taken by the Tribunal is only for 8 days. The disability certificate issued by the doctor also would state that the wound was healed after 3 months. So taking all those factors into account loss of earning for five months can be awarded. So it will come to Rs.20,000/-. Deducting the amount already awarded, balance would be Rs.8,000/ - [20,000-12,000]. MACA No.2771/2012 10 18. Towards bystander expenses, Tribunal only awarded Rs.1,200/-. It has come out that she had undergone 37 days inpatient treatment. Accident was in the year 2005. Taking Rs.200/- per day, appellant is entitled to get Rs.7,400/[200x37]. Deducting the amount already awarded, balance would be Rs.6,200/ - [7,400-1,200]. 19. Towards extra nourishment, nothing has been awarded. In view of the fact that she had undergone 37 days inpatient treatment, an amount of Rs.3,700/- is awarded towards extra nourishment. Towards damage to clothing no amount is awarded. So Rs.500/- is awarded towards damage to clothing. 20. According to the learned counsel, in view of the prolonged treatment and the various procedures of treatment undergone by the appellant, Rs.18,000/- awarded by the Tribunal towards pain and suffering is very low. So Taking into account the facts and circumstances, an amount of Rs.25,000/- is seems to be reasonable towards pain and suffering. Deducting the amount already awarded, balance would be MACA No.2771/2012 11 Rs.7,000/- [25,000-18,000]. It has already been found that permanent disability can be taken at 5% instead of 4% taken by the Tribunal. Appellant at the time of accident was 34 years old. As per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] as approved by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the suitable multiplier would be '16'. So compensation towards permanent disability would be Rs.38,400/- [4,000x12x16x5/100]. Deducting the amount - already awarded, balance would be Rs.15,360/ [38,40023,040]. 21. Towards loss of amenities, only Rs.14,000/- has been awarded. In view of the nature of injuries and the disability suffered by her and further taking into account the fact that she is a home maker and doing tailoring also the injury sustained would considerably cause inconvenience and discomfort in discharging her duties. Hence, towards loss of amenities, Rs.20,000/- is seems to be reasonable. Deducting the amount already awarded balance would be Rs.6,000/- [20,000-14,000]. MACA No.2771/2012 12 22. In the result, the appellant is allowed to realise enhanced compensation of Rs.46,760/- [8,000+6,200+3,700+ 500+7,000+15,360+6,000], which is rounded off to Rs.46,800 /- (Rupees forty six thousand eight hundred only) which will carry interest at the rate of 6% per annum from the date of petition till realisation. The third respondent , insurer shall satisfy the additional 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. Appellant shall provide her 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 counsel for the 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** **shg** **JUDGE**