Renju alias Shine L.R. v. Lakshmi P., Sajeevlal and The Manager, Reliance General Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` TUESDAY, THE 23[RD]DAY OF AUGUST 2022 / 1ST BHADRA,1944 MACA NO. 2995 OF 2017 ``` ``` OPMV 942/2011 OF III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`APPELLANT/APPLICANT:`** ``` RENJU ALIAS SHINE L.R., ``` ``` AGED 42 YEARS, S/O. RAMESWARA DAS, TC 11/1005, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM, NOW RESIDING AT TC 11/154(5), HOUSE NO. 132 (A), KANAKA NAGAR, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003. ``` ``` BY ADV SRI.R.T.PRADEEP ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 LAKSHMI P.,`** ``` D/O. PUSHAKARAN, TC 11/432, LAKSHMI BHAVAN, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003, OWNER OF THE INDICA CAR BEARING REG.NO. KL-01-AR-3484. ``` - **`2 SAJEEVLAL,`** ``` S/O. PUSHKARAN L., TC 11/432, LAKSHMI BHAVAN, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003, DRIVER OF THE INDICA CAR BEARING REG.NO. KL-01-AR-3484. ``` ``` 3THE MANAGER, RELIANCE GENERAL INSURANCE COMPANY LIMITED, 3RD FLOOR, LEVEL 5 TRANS TOWER, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014, INSURER OF THE INDICA CAR, POLICY NO. 2203702311002461, VALID FROM 31.08.2010 TO 30.08.2011. ``` ## **`R3 BY ADV SRI.R.AJITH KUMAR (128/84)`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON 12.08.2022, THE COURT ON 23.08.2022 DELIVERED THE FOLLOWING: ``` MACA 2995 OF 2017 2 ## **J U D G M E N T** The claimant in OP(MV) No.942 OF 2011 on the file of the III Additional Motor Accidents Claims Tribunal, Thiruvananthapuram filed this appeal challenging the impugned award dated 21.06.2017. 2. On 30.03.2011, while the appellant was travelling in KL-01/AR-3484 Indica car driven by the 2[nd] respondent - through Attingal Kazhakoottam NH road, due to his rash and negligent driving, the vehicle hit against a stone and it turned down and the appellant and other passengers in that car, sustained injuries. 3. The 1[st] respondent was the owner of that car, the 2[nd] respondent was the driver, and the 3[rd] respondent was the Insurer. 4. The appellant suffered serious injuries including head injury, and he was hospitalised for 11 days. Even after discharge, he was continuing his treatment as an MACA 2995 OF 2017 3 out-patient. He suffered disability also because of the injuries sustained. He approached the Tribunal claiming compensation of Rs.5,00,000/-. But the learned Tribunal awarded only Rs.25,000/- as no fault liability, as there was no evidence to prove rashness or negligence from the part of the driver. Challenging that award, the appellant has come up with this appeal. 5. Now let us see whether there is any illegality or impropriety in the impugned award warranting interference by this Court. 6. According to the appellant, the 2[nd] respondent Sajeev Lal was the driver of the offending vehicle at the time of accident and solely due to his rashness and negligence, the accident occurred. Learned Tribunal found that in Ext.A1, FIR, the name of the driver was shown as Mr.Nijas, who is an applicant in OP(MV) No.941 of 2011. But PW1 deposed before Court that the vehicle was driven by Mr.Sajeev Lal, the 2[nd] respondent. In Ext.A21 Motor MACA 2995 OF 2017 4 Occurrence Report prepared by Police after investigation of Crime No.221 of 2011, it is specifically stated that though the vehicle was driven by Sri.Sajeev Lal, there was no negligence from his part and while averting an accident, the car lost its control and toppled. So, the Tribunal came to the conclusion that the real driver Nijas was substituted with the 2[nd] respondent-Sri.Sajeev Lal and there was no negligence from the part of the driver. So, no compensation was awarded under Section 166 of the Motor Vehicles Act and compensation under no fault liability was awarded under Section 140 of the Motor Vehicles Act. 7. The learned counsel for the appellant submitted that the claimant in OP(MV) No.943 of 2011, Sri.Sanal S. gave Ext.A1 FI Statement before Police. But when examined before Court as PW1, he categorically deposed that the vehicle was driven by Sri.Sajeev Lal and the accident occurred due to his rash and negligent driving. Though he was cross-examined by the 3[rd] respondent-Insurance MACA 2995 OF 2017 5 Company, there was not even a suggestion that the accident was not on account of the rash and negligent driving of the car by Sri.Sajeev Lal. Ext.A21 Motor Occurrence Report clearly shows that the offending vehicle was driven by Sri.Sajeev Lal. There is uncontroverted testimony of PW1 that the accident occured due to his rash and negligent driving. Moreover, the accident itself will speak about the rashness and negligence from the part of the driver. If the driver was careful, no such incident would have happened. So, the testimony of PW1 coupled with Ext.A21 document is sufficient to hold that the accident occurred due to the rash and negligent driving of KL-01/AR-3484 Indica car by the 2[nd] respondent. 8. Now coming to the compensation claim, Ext.A14 Discharge Summary will show that the appellant was admitted in KIMS Hospital, Thiruvananthapurm on 30.03.2011 and was discharged on 10.04.2011. The injuries suffered were (1) Severe Head Injury, (2) Fracture (R) MACA 2995 OF 2017 6 2nd-6th Ribs with Haemopneumothorax, (3) Fracture (R) Clavicle, (4) Fracture (L) Superior and Inferior Pubic Ramus and (5) Bronchial Asthma. He produced Ext.A17 license under FSS Act, 2006 to show that he was a licensed caterer and according to him, he was earning monthly income of Rs.15,000/-. Since he was self-employed, according to him, no documents are there to prove his monthly income. Due to the injuries suffered, he was not able to do any job for six months and even now, due to the disability suffered, his catering business suffered great loss. 9. Since there is no concrete evidence to prove his monthly income, we have to go by precedence. As per **Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , a vegetable vendor in the year 2011 was eligible to get Rs.8,000/-. Since the appellant was a licenced caterer earning more income, his monthly income could have been fixed @ Rs.9,000/- per month. Considering the nature of MACA 2995 OF 2017 7 injuries suffered, loss of income for three months is justified. So, he is entitled to get Rs.27,000/- (9000 X 3) under the head ‘loss of earning’. 10. Towards transportation to hospital, Rs.2,000/- can be awarded as initially he was taken to Medical College Hospital, Thiruvananthapuram, and from there to KIMS Hospital, Thiruvananthapuram. Towards extra nourishment, Rs.3,000/- is awarded and he was hospitalised for 11 days and he was on medication even after discharge. Towards damaged clothing, Rs.500/is reasonable. Towards bystander expenses, Rs.3,750/- could be awarded @ Rs.250 per day for 15 days including 11 days of hospitalisation. 11. Towards medical expenses, the appellant produced Exts.A15 and A16 medical bills. Ext.A15 will show that the total bill amount in Kerala Institute of Medical Sciences was Rs.67,018/-, and after adjusting the advance amount paid the balance payable was Rs.49,999/-. The appellant produced Ext.A18 which will show that he had received 8 MACA 2995 OF 2017 Rs.50,000/- from Star Health and Allied Insurance Co. Ltd., out of the total amount of Rs.72,169/-. So, from Ext.A15 medical bills for the period 30.03.2011 till 10.04.2011 he had already received Rs.50,000/- and so he is eligible to get the balance amount of Rs.17,019/- he had remitted in Kerala Institute of Medical Sciences. 12. Ext.A16 medical bills will show that some of the bills were for the period 30.03.2011 till 10.04.2011 paid before Kerala Institute of Medical Sciences during the period of admission. All those amounts were covered by Ext.A15 final bill. In Ext.A16, bills are there showing medical expenses incurred after 11.04.2011, and the appellant is entitled to get the amount covered by those bills. Item Nos.6, 7, 14, 15, 16, 18 are dated 30.03.2011, which are covered by Ext.A15 medical bills. Item No.30 is a bill for purchasing tooth paste which is also to be rejected. So, the appellant is eligible to get Rs.9,998/- which can be round to Rs.10,000/-. So, the appellant is entitled to get a total MACA 2995 OF 2017 9 amount of Rs.27,019/- (17,019 + 10,000). 13. Towards pain and suffering the appellant is eligible to get Rs.25,000/- considering the nature of injuries suffered and the treatment he had undergone. 14. Considering the nature of injuries suffered and the persisting difficulties including disability, towards loss of amenities he is eligible to get Rs.20,000/-. 15. According to the appellant, he suffered permanent disability and he produced Ext.A20 certificate issued from the Department of Orthopaedics Medical College Hospital, Thiruvananthapuram, showing his permanent disability as 19% as per MC Bride’s scale. The Doctor, who issued the certificate, was not examined by the appellant. It is not a certificate issued by the Medical Board. It is not stated that the disability noted in Ext.A20 was with respect to his whole body. It is true that the appellant, who was doing catering business, might have suffered a setback due to the injuries and disability he had suffered. However, the 19% disability MACA 2995 OF 2017 10 noted by the Doctor cannot be accepted as such, since it might have been with respect to the body part affected in the accident. So, even without examining the Doctor, who issued the certificate, this Court is inclined to accept the disability of the appellant as 10%. Since he was aged only 41 years old at the time of accident, the multiplier applicable is 14. So, the compensation for 10% disability can be assessed as Rs.1,51,200/- (9000 X 12 X 14 X 10 / 100). |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|……|Rs.27,000/-|Rs.27,000/-| |Transportation<br>to hospital|…….|Rs.2,000/-|Rs.2,000/-| |Extra<br>nourishment|…….|Rs.3,000/-|Rs.3,000/-| |Damaged<br>clothing|..……|Rs.500/-|Rs.500/-| |Bystander<br>expenses|…….|Rs.3,750/-|Rs.3,750/-| |Medical|||| MACA 2995 OF 2017 11 |expenses|Rs.50,000/-|Rs.77,019/-|Rs.27,019/-| |---|---|---|---| |Pain and<br>suffering|…….|Rs.25,000/-|Rs.25,000/-| |Loss amenities|…….|Rs.20,000/-|Rs.20,000/-| |Permanent<br>disability|……..|Rs.1,51,200/-|Rs.1,51,200/-| |Total|||Rs.2,59,469/-| 16. In the result, the appellant is entitled to get compensation of Rs.2,59,469/- (27,000 + 2,000 + 3,000 + 500 + 3,750 + 27,019 + 25,000 + 20,000 + 1,51,200). Since he was already paid Rs.25,000/- towards no-fault liability, he is entitled to get the balance Rs.2,34,469/(Rupees Two Lakh Thirty Four Thousand Four Hundred and Sixty Nine only) towards compensation. 17. The Policy is admitted by the 3[rd] respondent. Since the accident occured due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent, the 1[st] respondent owner is vicariously liable and the 3[rd] respondent-Insurer is liable to indemnify the injured. So, MACA 2995 OF 2017 12 respondents 1 and 3 are jointly and severally liable to compensate the appellant and as the Insurer, the 3[rd] respondent has to deposit the compensation amount of Rs.2,59,469/- in the Bank account of the appellant with interest at the rate of 8% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- ## **SOPHY THOMAS, JUDGE** DSV/20.08.2022