Rijin Raj v. Jamsheer, Ali Sahir and National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** **MACA NO. 1849 OF 2013** **AGAINST THE JUDGMENT IN OPMV 1251/2008 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, VADAKARA DATED 19.12.2012** ## **APPELLANT/PETITIONER:** RIJIN RAJ, AGED 24 YEARS S/O.V.RAJAN, VELLARKAD HOUSE, EDOLIVYALIL, ERANHIPALAM P.O., KOZHIKODE. BY ADVS. P.V.ANOOP K.V.SREERAJ ## **RESPONDENTS/RESPONDENTS:** 1 JAMSHEER, S/O.MUHAMMED SHAROOF, CHERANKANDY HOUSE, CHENGOTTUKAVU P.O., KOYILANDY TALUK-673580. 2 ALI SAHIR, S/O.UMMARKOYA, ELEYADATH HOUSE, KUZHIPARAMBIL HOUSE, PAYYADAKKAL P.O., KOZHIKODE-673509. 3 NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE, II, P.B.NO.811, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE-673007. BY ADV SRI.P.G.GANAPPAN ADV.P.G GANAPPAN-R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1849 of 2013 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V) No.1251/2008 on the file of Motor Accidents Claims Tribunal, Vatakara. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation out of the injury sustained by the appellant/claimant (hereinafter be referred as the claimant) in an accident occurred on 27.10.2002 at about 2.45 p.m. The claimant was walking through the Wayanad road then a motor cycle bearing Reg.No.KL/11/-F/1507 M-80 came from the CTC pump after filling the petrol. At the same time another motorcycle bearing Reg.No.KL/11/M-6431 came from Calicut side rashly and negligently and hit the other motorcycle as well as the claimant. Out of the accident, the claimant sustained serious injuries and was taken to Medical College Hospital, Calicut, and there he underwent inpatient treatment for 8 days. It is alleged that the accident happened due to the rash and negligent driving of the motorcycle bearing Reg.No. KL/11/M-6431. 1[st] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. Total compensation of Rs.5,00,000/- has been claimed. MACA.No.1849 of 2013 3 2. The 1[st] respondent remained ex-parte. The 2[nd] respondent filed written statement contending that the accident happened due to the negligence of the claimant himself. It is further contended that the vehicle is covered by valid policy of insurance issued by the 3[rd] respondent. The 3[rd] respondent filed written statement admitting the policy coverage with respect to the offending vehicle. The rashness and negligence on the part of the 2[nd] respondent is denied. It is also contended that 2[nd] respondent has no valid driving license. The claimant was put to strict proof regarding the age, income and occupation as well as the injuries alleged to have been sustained. 3. PW1 has been examined and Exhibit A1 to A10 were marked from the side of the claimant. Tribunal on evaluating the pleadings in the claim petition as well as the materials produced, came to a conclusion that the accident happened due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent. The 1[st] respondent was held vicariously liable for the acts of 2[nd] respondent. The 3[rd] respondent insurer is directed to make good the loss sustained by the 1[st] respondent. The Tribunal awarded a total compensation of Rs.1,13,758/-. MACA.No.1849 of 2013 4 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 5. Notice as against 1[st] and 2[nd] respondents is dispensed with at the risk of the claimant. Adv.P.G.Ganappan, the learned Standing Counsel appeared on behalf of the 3[rd] respondent. Heard the learned counsel for the appellant and also the learned Standing Counsel for the third respondent Insurance Company. Lower court records were called for and perused. 6. According to the learned counsel for the claimant, the claimant was doing Aluminum fabrication work and he was 19 years and monthly income has been claimed as Rs.4,500/-. But the Tribunal took the monthly income notionally as Rs.3,000/- which according to the learned counsel is very low. 7. 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/-. The Apex Court held that, MACA.No.1849 of 2013 5 the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 8. In **Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** taking note of the earlier decision in Ramachandrappa's case, 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/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be MACA.No.1849 of 2013 6 expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 9. In this case the accident occurred on 27.10.2002. The claimant was 19 years doing Aluminum fabrication work. Hence, in view of the facts and circumstances and settled position of law, I find it just and proper to take the monthly income as Rs.3,500/-. 10. The learned counsel relies on **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** wherein 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 (`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 MACA.No.1849 of 2013 7 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. 11. 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 and trauma as a consequence of the injuries. 12. In cases of serious injuries, where there is specific MACA.No.1849 of 2013 8 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). 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. It has come out that the claimant has undergone inpatient treatment for 8 days. Claimant sustained following injuries: _1. Open knee ® Patella tendon cut_ _2. Lacerated wound 3x1 ® knee_ _3. Lacerated wound 7x4 ® knee_ MACA.No.1849 of 2013 9 _4. Abrasion (L) knee_ _5. Open knee injury ® side_ _6. Sonological tenderness ® iliac fossa tenderness_ 15. PW1, one of the members of the Medical Board issued Exhibit A5 disability certificate certifying 40% permanent disability. During evidence he categorically stated that 40% was not whole body assessment, only the assessment of Right knee and Right hip. He deposed during evidence that it can be fixed as 13%. During cross examination PW1 stated that the claimant face difficulties in sitting, climbing and fixing at heights. In view of the fact that the claimant is doing Aluminum fabrication work and the injuries to right knee, certifying 40% permanent disability, the functional disability can very well be fixed as 17% instead of 13% taken by the Tribunal. 16. Loss of earning has been fixed by the Tribunal for four months. In view of the nature of injuries and period of treatment undergone by the claimant, loss of earnings taken for 4 months can very well be maintained. So re-fixing the amount towards **loss of earnings** the amount would be Rs.3,500x4=Rs.14,000/-. Deducting the amount already awarded the balance would be MACA.No.1849 of 2013 10 **Rs.2,000/-** (Rs.14,000-12,000). Claimant was 19 years old at the time of accident. Claimant undergone 8 days inpatient treatment and loss of earning for 4 months also taken. Towards compensation for **extra-nourishment** only Rs.1,000/- has been awarded Rs.500/- more is awarded under that head. Towards **permanent disability** the claimant is entitled to get Rs.3,500 x 12 x 17 x 18/100 =Rs.1,28,520/-. Deducting the amount already awarded the balance would be **Rs.53,640/-** (Rs.1,28,520-74,880). There was no argument with respect to compensation awarded under other heads. So, the claimant is entitled to get **enhanced compensation** of Rs.56,140/- (Rs.53,640+2000+500) rounded to **Rs.56,150/-** . 17. Compensation awarded is tabulated for easy reference as follows: |Compensation on different<br>heads|Amount<br>claimed(Rs.)|Amount<br>awarded<br>by the<br>Tribunal<br>Rs.|Enhancement<br>by this Court| |---|---|---|---| |Loss of earning|50,000|12,000|2,000| MACA.No.1849 of 2013 11 |Compensation on different<br>heads|Amount<br>claimed(Rs.)|Amount<br>awarded<br>by the<br>Tribunal<br>Rs.|Enhancement<br>by this Court| |---|---|---|---| |Medical treatment and<br>expenses|60,000|578|| |Transport to hospital|10,000|1,200|| |Bystander expenses|25,000|1,600|| |Damage to clothing and<br>articles|2,000|500|| |Extra nourishment|20,000|1,000|500| |Pain and sufferings|1,00,000|15,000|| |Compensation for<br>disability|1,50,000|74,880|53,640| |Compensation for loss<br>of earning power|2,00,000||| |Loss of amenities and<br>enjoyment in life||10,000|| |Total<br>Rounded to|6,67,000|1,16,758|56,140<br>56,150| 18. In the result, appeal allowed in part enhancing compensation to an amount of **Rs.56,150 /- (Rupees fifty six** MACA.No.1849 of 2013 12 **thousand one hundred and fifty only)** which will carry interest @ 7.5% per annum from the date of petition excluding the period of delay of 52 days in filing the appeal. The 3rd respondent, Insurance Company, shall satisfy 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. The appellant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Sd/- **M.R.ANITHA JUDGE** SMF