High Court of KeralaDivision Bench2017-07-07Appeal disposed of; no order as to costs.

S. Kumar v. Praveen Raj and Others

Case / Petition Number:MACA.No.1083 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
Anil K. Narendran
Judgment Date: 2017-07-07
Court Decision / Holding: The appeal is disposed of. The High Court enhanced the compensation in several heads: loss of earnings reworked to Rs. 38,316 (6386 x 6) with an additional Rs. 28,316; bystander expenses and extra nourishment revised to Rs. 2,400 and Rs. 3,200 respectively (additional Rs. 900 and Rs. 2,700); damage to clothing raised to Rs. 750 (additional Rs. 250); pain and suffering revised to Rs. 30,000 (additional Rs. 15,000); loss of amenities increased to Rs. 15,000 (additional Rs. 11,500). The total additional compensation awarded is Rs. 58,666, with interest at 8% per annum from petition date till realisation. The insurer is entitled to recover the enhanced amount from the owner, subject to deposit before the Tribunal within two months from certified copy. There is no order as to costs. The appeal is disposed of as above.
Final Disposition: Appeal disposed of; no order as to costs.

Parties to the Case

Appellants / Petitioners

S. Kumar, S/o. Sreedharan, Manakkatttu Vilakom, Near F.C.I., Kazhakuttom, Thiruvananthapuram District

Respondents

Praveen Raj, J.L., Lilly Vilasom, Marakkamuttom P.O., Vazhuthoor Neyyattinkara, Thiruvananthapuram Dist. 695001
Prassannan V., S/o. Velayudhan Nair, Vilayil Veedu, Pangapparap.O., Thiruvananthapuram Dist. 695001
The Divisional Manager, New India Assurance Co. Ltd., Divisional Office, K.N. Mathew Building, Gandhari P.O., Amman Kovil Road, Thiruvananthapuram Dist. 695001

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Ravikumar

Counsels for Respondents

• Sri P. Jayasankar
• Sri A. A. Ziyad Rahman

Case Synopsis & Summary

This High Court of Kerala appeal arises from an award of the Motor Accidents Claims Tribunal, Attingal (OPMV No.123/2004) dated 17 April 2012, in a claim under Section 166 of the Motor Vehicles Act, 1988, for injuries sustained in a motor accident on 21 May 2003. The appellant, then 38 years old, a headload worker, claimed substantial compensation for losses including medical expenses, loss of earning, pain and suffering, bystander expenses, and loss of amenities. The Tribunal held the 2nd respondent rider liable, as the vehicle was insured, and assessed total compensation at Rs. 1,32,500, directing the insurer to deposit the amount with interest; costs were awarded against the insurer. The Tribunal noted the evidence (Exts. A1–A13) and accepted that the accident resulted from rash and negligent driving. It declined any compensation for permanent disability on the ground that Ext. A7 disability certificate lacked physician examination, relying on Raj Kumar v. Ajay Kumar (SC) to justify requiring medical corroboration before acting on disability. The appellant challenged the quantum, arguing for higher compensation in several heads, and contended that the injury severity and hospitalisation warranted greater awards, including disability and future earning implications. The High Court partly allowed the appeal, enhancing several heads and reworking loss of earnings, bystander and nourishment expenses, pain and suffering, clothing, and amenities, culminating in an additional Rs. 58,666 with 8% interest, and directed recovery against the owner.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the quantum of compensation awarded by the Tribunal under multiple heads is inadequate in light of grievous injuries, lengthy hospitalisation, and the impact on earning capacity. Relying on Ext. A11 (salary certificate) showing pre-accident monthly earnings of Rs. 6,386 and medical records indicating fractures and facial injuries, he seeks enhanced compensation for loss of earnings, medical and miscellaneous expenses, pain and suffering, bystander and nourishment expenses, and loss of amenities. While disputing the Tribunal’s decision not to award disability, the appellant argues there is evidence of permanent impairment (Ext. A7) and asserts that disability should be compensated in accordance with the established principles of assessment. He also emphasizes that the vehicle was insured and that the negligent rider caused the accident; hence compensation payable by the insurer should be real and adequate.

Contentions of Respondents

The respondents contest the quantum awarded by the Tribunal, arguing that the evidence does not justify a substantial enhancement. They emphasise that the disability certificate (Ext. A7) was not supported by a doctor’s examination, citing Raj Kumar v. Ajay Kumar to justify limited or non-grant of disability compensation. They contend the income from employment as a headload worker, as shown in Ext. A11, does not translate to a high loss of earning. The insurer also challenges liability and asserts the higher sums claimed are speculative. The respondent-insurer notes its obligation to pay only to the extent of the Tribunal’s award and stresses the option of recovery against the owner if the rider lacked a valid license, which is already recognised in the Tribunal’s order.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Raj Kumar v. Ajay Kumar	2011(1) KLT 620 (SC)	Positive	The decision is cited to justify that disability certificates require doctor examination before being used to award compensation, supporting the Tribunal’s approach of not awarding disability without physician input.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939** ## **MACA.No. 1083 of 2012 ()** **-------------------------** **AGAINST THE AWARD IN OPMV 123/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ATTINGAL DATED 17.04.2012** **---------------** ## **APPELLANT/APPELLANT:** **-----------------------------------** **S.KUMAR, S/O.SREEDHARAN, MANAKATTU VILAKOM, NEAR F.C.I., KAZHAKUTTOM THIRUVANANTHAPURAM DIST.** ## **BY ADV. SRI.K.RAVIKUMAR** ## **RESPONDENT(S)/OWNER/RIDER/INSURER:** **----------------------------------** **1. PRAVEEN RAJ. J.L.,** **LILLY VILASOM, MARAKKAMUTTOM PO, VAZHUTHOOR NEYYATTINKARA, THIRUVANANTHAPURAM DIST.695 001.** **2. PRASANNAN V., S/O.VELAYUDHAN NAIR, VILAYIL VEEDU, PANGAPPARA P.O.** **THIRUVANANTHAPURAM DIST.695 001.** **3. THE DIVISIONAL MANAGER,** - **NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE K.N.MATHEW BUILDING, GANDHARI P.O., AMMAN KOVIL ROAD, THIRUVANANTHAPURAM DIST.695 001.** **BY ADV. SRI.P.JAYASANKAR BY ADV.SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.No.1083 OF 2012 -------------------------------------------------DATED THIS THE 7[th] DAY OF JULY, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** This appeal arises out of the award passed by the Motor Accident Claims Tribunal, Attingal dated 17.4.2012 in O.P.(MV) No.123/2004, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident which occurred on 21.5.2003. On the date of accident, while the appellant/claimant was riding a motor cycle bearing registration No.KL-01/X-4319 along public road, it was hit by a motorcycle bearing registration No.KCT-2160 owned and ridden by respondents 1 and 2 and insured with the 3[rd] respondent. As a result of the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the offending motor cycle by the 2[nd] respondent rider, claim petition was filed before the Tribunal, claiming a total compensation of 1,50,000/- under₹ different heads. M.A.C.A.No.1083/2012 -2- 2. Before the Tribunal, Exts.A1 to A13 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent riding of the offending motor cycle by the 2[nd] respondent rider. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent owner. Under different heads, the Tribunal awarded a total compensation of ₹1,32,500/- and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7.5% per annum from the date of petition (27.1.2004) till the date of expiry of the period of 60 days from the date of award, failing which, the insurer has to pay interest at the rate of 12% per annum till the date of deposit. The appellant/ claimant was also allowed to recover costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is M.A.C.A.No.1083/2012 -3- before this Court in this appeal. 5. We heard arguments of the learned counsel for the appellant/claimant and also the learned counsel for the 3[rd] respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under different heads warrants an enhancement in this appeal. 7. The accident is of the year 2003 and at the time of accident, the appellant/claimant was aged 38 years. He claimed a monthly income of 6,386/- as a headload worker in the Food₹ Corporation of India. In order to substantiate the same, he relied on Ext.A11 salary certificate dated 13.11.2006, in which, his monthly salary is shown as 6,386/-.₹ 8. The injuries sustained by the appellant/claimant in the accident, as borne out from the medical records, are as follows: “(1) Large haematoma measuring about 7x5 cm size in the right maxillary sinus, (2) discontinuity of the sclera of the eye globe medially on the right-suggestive of rupture, (3) fracture of anterior, posterolateral and medial wall of both maxillary sinuses, (4) displacement of ramus of right mandible to the left, (5) fracture of floor and lateral wall of right orbit, (6) fracture of right nasal bone and (7) extra cranial soft tissue swelling is noted in M.A.C.A.No.1083/2012 -4- the right fronto temporal region, right anterior maxillary and periorbital regions.” 9. As borne out from Ext.A6 discharge summary, due to the injuries sustained in the accident, the appellant/claimant had undergone inpatient treatment for a total period of 16 days under three different spells, i.e., from 22.5.2003 to 2.6.2003, 20.6.2003 to 21.6.2003 and from 16.7.2003 to 17.7.2003. He had also undergone three surgeries. In Ext.A7 disability certificate, the Doctor has certified the permanent disability of the appellant/claimant as 33%. However, he has not taken any steps to prove the said disability certificate by examining the Doctor. The appellant/claimant has also not chosen to mount the box. 10. In view of the judgment of the Apex Court in **Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]** , the disability certified in Ext.A7 can be acted upon only after examining the Doctor concerned. Further, Ext.A11 salary certificate dated 13.11.2006 issued by the employer would show that disability, if any, arisen out of the injuries sustained by the appellant/claimant M.A.C.A.No.1083/2012 -5- in the motor accident, has not adversely affected his earning capacity as a headload worker, inasmuch as, he is able to work as a headload worker even after the accident. At any rate, since the appellant/claimant failed to prove Ext.A7 disability certificate, the Tribunal was justified in not granting any compensation under the head disability. 11. The compensation awarded by the Tribunal under different heads reads thus: |Sl. No.|Head of claim|Amount claimed (in Rupees)|Amount awarded (in Rupees)| |---|---|---|---| |1|Loss of earning (Total)|45,000/-|10,000/-| |2|Loss of earning (partial)|Nil|Nil| |3|Medical and miscellaneous expenses|85,000/-|90,000/-| |4|Future treatment|Nil|Nil| |5|Bystander expenses|6,000/-|1,500/-| |6|Transportation expenses|3,000/-|1,500/-| |7|Extra nourishment|5,000/-|500/-| |8|Damage to clothing etc.|Nil|500/-| |9|Pain and suffering|1,50,000/-|15,000/-| |10|Compensation for permanent or continuing disability|3,00,000/-|10,000/-| |11|Compensation for loss of future earning power|2,00,000/-|Nil| |12|Compensation for loss of amenities in life|1,50,000/-|3,500/-| M.A.C.A.No.1083/2012 -6- |Sl. No.|Head of claim|Amount claimed (in Rupees)|Amount awarded (in Rupees)| |---|---|---|---| ||TOTAL||1,32,500/-| 12. Towards loss of earning, the Tribunal awarded a sum of 10,000/-. Considering the nature of injuries sustained and the₹ treatment the appellant/claimant had undergone, we find that he is entitled for loss of earning, at least for a period of six months. In such circumstances, the compensation payable under the head loss of earning is reworked as 38,316/- (6386x6), resulting an₹ additional compensation of ₹ **28,316** /-. 13. Towards bystander expenses and extra nourishment, the Tribunal awarded a sum of 1,500/- and 500/- respectively.₹ ₹ As we have already noticed, in the accident, the appellant/claimant sustained grievous injuries. The nature of injuries referred to in the medical records necessitate consumption of only liquid food. Considering the nature of injuries sustained, he is entitled for extra nourishment at the rate of 200/- per day. The appellant is also entitled for₹ compensation under the head bystander expenses, at the rate of M.A.C.A.No.1083/2012 -7- ₹150/- per day. Therefore, the compensation payable under the head bystander expenses is reworked as 2,400/- (16x150),₹ resulting an additional compensation of ₹ **900** /- and that under the head extra nourishment is reworked as 3,200/- (16x200),₹ resulting an additional compensation of ₹ **2,700** /-. 14. Towards damage to clothing, the Tribunal awarded a sum of 500/-. Considering the fact that the accident is of the₹ year 2003, we deem it appropriate to refix the compensation under this head as ₹750/-, resulting an additional compensation of ₹ **250** /-. 15. Towards pain and suffering, the Tribunal awarded a sum of 15,000/-. Considering the nature of injuries sustained₹ and the treatment the appellant had undergone, as borne out from the medical records, we deem it appropriate to refix the compensation under this head as ₹30,000/-, resulting an additional compensation of ₹ **15,000** /-. 16. Though there is no reliable materials to prove that the appellant/claimant had sustained any permanent disability as a result of the injuries sustained in the accident, the Tribunal M.A.C.A.No.1083/2012 -8- awarded a sum of ₹10,000/under the head permanent disability. In the absence of any reliable materials, the compensation already awarded by the Tribunal under this head warrants no enhancement in this appeal. 17. Towards loss of amenities, the Tribunal awarded only an amount of 3,500/-. Though the appellant/claimant could not₹ prove the permanent disability, as certified in Ext.A7 disability certificate, by examining the Doctor concerned, the nature of injuries sustained, as borne out from the medical records, necessitate enhancement of the compensation under the head loss of amenities to ₹15,000/-, resulting an additional compensation of ₹ **11,500** /-. 18. In the result, the appellant will be entitled for an additional compensation of ₹ **58,666** /-(28,316+900+2,700+250+ 15,000+11,500) in this appeal, which will carry interest @8% per annum from the date of petition till realisation. 19. Since the 2[nd] respondent rider was not having a valid driving licence, the 3[rd] respondent insurer was permitted to recover the compensation amount awarded by the Tribunal from M.A.C.A.No.1083/2012 -9- the 1[st] respondent owner. In view of the right of recovery granted by the Tribunal, the 3[rd] respondent insurer will be entitled to recover the additional compensation payable in terms of this judgment, by proceeding against the 1[st] respondent owner. The 3[rd] respondent insurer shall deposit the said amount before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn //True copy// P.S.to Judge