Safarudheen K.T v. K. Shajahan, Gireesh Kumar and The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 18[TH] DAY OF MARCH 2022 / 27TH PHALGUNA, 1943** **MACA NO. 559 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1792/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **KOZHIKODE** ## **APPELLANT/CLAIMANT:** **SAFARUDHEEN K.T** **AGED 22 YEARS, S/O.ABOOBACKER, KOLOTHUMTHODIKA HOUSE, CHERUVADI POST, VIA-MAVOOR, KOZHIKODE.** **BY ADV SMT.K.V.RESHMI** ## **RESPONDENTS/RESPONDENTS:** - **1 K.SHAJAHAN S/O.AHAMMED, ADAMPADI HOUSE, KAKKAD AMSOM AND DESOM, NELLIKKATHERU POST, MUKKAM, KOZHIKODE.** - **2 GIREESH KUMAR S/O.GOPINATHANPILLAI PERUMKOLLANKANDIYIL HOUSE, THAZHEKKODE AMSOM, MANASSERY POST, MUKKAM, KOZHIKODE.** - **3 THE NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE. BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE** ## **OTHER PRESENT:** **SMT DEEPA GEORGE-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** ## **18.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.559/2012 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.1792/2006 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation of Rs.4,00,000/-, out of injury sustained to the appellant/claimant in a motor accident occurred on 04.06.2006 at about 8.30 a.m while he was riding a motorcycle bearing Reg.No.KL-11-L-6615 from Cheruvadi to Mannaseri due to hit by bus bearing Reg.No.KL-11-E-4059 at Mukkam bridge. 2. It is alleged that the accident happened due to the rash and negligent driving of the second respondent, the driver of the bus. First respondent is the registered owner of the offending vehicle and third respondent is the insurer. 3. Before the Tribunal all the respondents filed separate written statement. Respondents 1 and 2 would MACA No.559/2012 3 contend that the vehicle is covered by a valid policy of insurance issued by the third respondent. Third respondent filed written statement admitting the policy coverage with respect to the bus bearing Reg.No.KL-11-E-4059 but denied the negligence alleged against the second respondent, driver of the bus. 4. Exts.A1 to A8 and C1 were marked from the side of the appellant/claimant. There was no oral evidence from either side. 5. On evaluating the pleadings as well as documents, Tribunal found that accident happened due to the rash and negligent driving of the second respondent, driver and third respondent insurer was held liable to make good the loss sustained by the first respondent, owner, and awarded a total compensation of Rs.98,726/-. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant (hereinafter be referred as the claimant) is before this Court in appeal for the various grounds stated in MACA No.559/2012 4 the memorandum of appeal. 7. Notice to respondents 1 and 2 dispensed with at the risk of the claimant. Third respondent appeared through Adv. Smt. Deepa George. 8. Heard both sides. Lower records were called for and perused. 9. According to the learned counsel for the claimant, the claimant was a Technician by profession and claimed a monthly income of Rs.6,000/-. But the Tribunal taken the annual income notionally as Rs.15,000/-, which, according to the learned counsel, is very low. She would also contend that the claimant had undergone prolonged inpatient treatment for 99 days. So the compensation awarded on all the heads are very low and she seeks for enhancement of compensation on all heads. 10. Learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded and no enhancement is required at the instance of this Court. MACA No.559/2012 5 11. It is true that though claimant claims a monthly income of Rs.6,000/- and claims to be a Technician, no document or other materials could be produced to the prove the actual income. 12. In Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court notionally fixed the monthly income of a coolie in the year 2004 as Rs.4,500/-. Following the principles in Ramachandrappa's case, in Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], while dealing with an appeal, which arose out of an accident occurred in the year 2008 Apex Court in the case of a vegetable vendor, aged 24 years, fixed the monthly income notionally as Rs.6,500/-. 13. The accident in this case was on 04.06.2006. Claimant was 18 year old at the time of accident. So his monthly income can notionally be taken as Rs.5,500/-. 14. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt MACA No.559/2012 6 with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. The 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 MACA No.559/2012 7 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. 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. 15. 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). 16. In paragraph No.5 of the above decision, 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 MACA No.559/2012 8 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. 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). 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. 17. The claimant in this case produced Exts.A3 to A7 to MACA No.559/2012 9 prove the injuries and the treatment undergone by him. He had sustained Type I open fracture both bones right leg fracture spinons process C3, lacerated wound scalp (L). Ext.A3 is the discharge card issued from Medical College Hospital, Kozhikode showing that he was admitted on 05.06.2006 and was discharged on 18.6.2006. Ext.A4 is the discharge card showing admission again on 04.11.2006 to 30.11.2006. Ext.A5 is the discharge card proves the admission again on 23.12.2006 to 20.01.2007. Ext.A6 is the discharge card showing further admission on 03.03.2007 to 25.3.2007. Ext.A7 is the discharge card showing the admission on 18.05.2007 to 26.05.2007. Ext.A4 discharge would show that he was admitted due to pain in mobility and underwent ORIF. Ext.A5 discharge cared would show that he has been suffered from osteomyelitis right tibia following ORIF and infection was almost controlled and he was discharged with advice to continue medication. Again he was admitted as per Ext.A6 due to infection. So the treatment records and the procedures undergone by the claimant would prove that he has been MACA No.559/2012 10 undergoing inpatient treatment for 99 days in total. 18. According to the learned counsel for the claimant, towards extra nourishment only Rs.1,000/- has been awarded. In view of the prolonged treatment and further that claimant was only 18 years old at the time of accident, Rs.2,000/claimed under that head is only to be allowed. Hence towards extra nourishment claimant is entitled to get Rs.1,000/ - [2,000- 1,000]. Towards pain and suffering, Tribunal awarded Rs.15,000/- though there was a claim of Rs.30,000/-. In view of the prolonged treatment and the lengthy procedures of treatment undergone by the claimant and further that he was 18 years old at the time of accident, towards pain and suffering, an amount of Rs.25,000/- is awarded. Deducting the - amount already awarded, the balance would be Rs.10,000/ [25,000-15,000]. 19. The main argument of the learned counsel is with regard to the compensation awarded towards the disability. The monthly income has already been fixed as Rs.5,500/-. As per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation MACA No.559/2012 11 & 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 '18'. Ext.C1 is the disability certificate issued by a Medical Board assessing 15% permanent disability and the same has been adopted by the Tribunal. In view of the serious nature of injuries and the prolonged treatment, 15% permanent disability as assessed by the Medical Board is only to be taken for computing the permanent disability. So towards permanent disability, claimant is entitled to get Rs.1,78,200/- [5,500x12x18x15/100]. Deducting the amount already awarded, balance is Rs.1,37,700/ - [1,78,200-40,500]. 20. Learned counsel would further contend that inspite of sustaining grievous injuries as well as 15% disability, no amount is awarded by the Tribunal towards loss of amenities. So in view of the facts and circumstances, an amount of Rs.15,000/- is awarded towards loss of amenities. Towards bystander expenses, Tribunal taken only Rs.100/- per day. The accident was in the year 2006. So Rs.200/- per day can be MACA No.559/2012 12 taken towards bystander expenses. So under that head claimant will be entitled to get Rs.9,900/ - [200x99 – 9,900]. 21. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.1,73,600/- [1,000+ 10,000+1,37,700+15,000+9,900] (Rupees one lakh seventy three thousand six hundred only), which will carry interest at the rate of 7.5 % per annum from the date of petition till realisation (excluding the period of 177 days delay caused in filing the appeal). 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. The disbursement of additional compensation to appellant/claimant shall be made taking note of the law on the point and in terms of directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook MACA No.559/2012 13 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 certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA** **JUDGE** shg/