Saidali v. Mathew George Vadakkel

## **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. 2284 OF 2010** **AGAINST THE AWARD IN OPMV 138/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI, DATED 23.4.2010** ## **APPELLANT/PETITIONER:** SAIDALI, S/O KAMMAD THETHAM PARAMBATH, KANNAMVETTIKKAVU.P.O., PULIKKAL, MALAPPURAM DISTRICT. BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH 1 MOHAMMED SAFIR, S/O MOHAMMED MURIKKATHODIKA HOUSE, KOORAD.P.O., MALAPPURAM DISTRICT, PIN-679 339. 2 ISMAIL, S/O.KUNHALI KOORIKKATTIL HOUSE, CHERUKAVU.P.O., MALAPPURAM DISTRICT, PIN-676 505. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED MANJERI, PIN-676 121. 4 T.P.JAYARAMAN, S/O.PRABHAKARAN NAIR VALIYATHACHORATH HOUSE, MUYIPPOTH.P.O., CHERUVANNUR, KOZHIKODE DISTRICT. PIN-673 524. BY ADVS. SRI.R.RANJITH (MANJERI) SRI.MATHEW GEORGE VADAKKEL ## **RESPONDENTS/RESPONDENTS:** SRI.MATHEW GEORGE VADAKKEL-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.2284 of 2010 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (MV) No.138/2006 on the file of Motor Accidents Claims Tribunal, Manjeri. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant/claimant (hereinafter be referred as claimant) in a motor accident occurred on 09.6.2005 at about 22hrs. It was the case of the claimant that, while the claimant was travelling in an autorickshaw bearing Reg.No.KL 9G 8353, the autorickshaw hit against stationary bus bearing Reg.No.KL 10E 9192. As a result, the claimant sustained grievous injuries. 2. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent, the driver of the autorickshaw. A total compensation of Rs.4,00,000/- has been claimed. 3. Before the Tribunal respondents 1, 2 and supplementary R4 were remained ex-parte. Supplementary R4 is impleaded in view of the written statement filed by the 3[rd] respondent, contending MACA.No.2284 of 2010 3 that the 2[nd] respondent was not the insurer. 4. 3[rd] respondent/insurer filed separate written statement admitting the policy coverage with respect to the offending vehicle, but denied the rashness and negligence on the part of the driver of the vehicle. The claimant was put to strict proof regarding the averments in the claim petition with regard to the age, income and occupation as well as injuries alleged to have been sustained. 5. Exhibits A1 to A12 series and X1 were marked from the side of the claimant. Exhibit B1 marked from the side of the 3[rd] respondent/insurer. 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 1[st] respondent. 3[rd] respondent insurer was held liable to pay the amount. The Tribunal awarded a total compensation of Rs.2,36,414/-. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. Service was complete as against R1, R3 and R4. Service MACA.No.2284 of 2010 4 not complete as against 2[nd] respondent. Lower court records were called for and perused. Both sides were heard. 8. The findings with respect to the negligence of the driver and liability of 3[rd] respondent is not disputed. The only dispute is with regard to the quantum of compensation awarded by the Tribunal. 9. According to the learned counsel for the claimant, the claimant was a coolie aged 40 years at the time of accident. The monthly income claimed was Rs.4,500/-. But the Tribunal taken the notional income as Rs.2,500/- which according to the learned counsel is very low. He would also contend that the claimant sustained very serious injuries and he had undergone 96 days inpatient treatment on various occasions. Compensation awarded under various heads are very low considering the injury sustained. Hence, he seeks for enhancement of compensation under various heads. 10. 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 MACA.No.2284 of 2010 5 age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, 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. 11. 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 MACA.No.2284 of 2010 6 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 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. 12. The claimant was alleged to be a coolie and aged 40 years. It is true that he could not produce any document as such to prove the actual income. The Apex Court in a case of accident occurred in the year 2004, fixed the monthly income of a coolie at Rs.4,500/-. In this case, the accident occurred in the year 2005. Hence, monthly income claimed at Rs.4,500/- by the claimant can very well be accepted. Hence, monthly income of the claimant is taken as Rs.4,500/-. 13. The learned counsel relies on **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC** MACA.No.2284 of 2010 7 **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 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. 14. 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 MACA.No.2284 of 2010 8 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. 15. 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). 16. 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 MACA.No.2284 of 2010 9 injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 17. In this case, the claimant produced Exhibit A2 wound certificate; Exhibit A3 to A5 are the discharge cards; Exhibit A6 is the discharge summary; Exhibit A7 and A8 are the other medical records to prove the long continued treatment undergone by the claimant in various hospitals. Exhibit A2 wound certificate would show that the claimant sustained following injuries: Lacerated wound 6x5x2 on (L) elbow, Lacerated wound 3x2x1 over chin, Lacerated wound 6x9x2 over (R) elbow, Multiple abrasions on cheek, face and (R) leg, X-ray chest fracture 3, 4, 5[th] rib (R), X-ray femur – fracture femur (R) posterior aspect. Exhibit X1 disability certificate issued by the Medical Board also certifies 20% permanent disability. Discharge cards produced from the side of the claimant as well as the disability certificate would reveal serious nature of injuries sustained by the claimant. Exhibit X1 disability certificate would prove Subluxation of right hip and shortening (1”) of right lower limb, partial ankylosis of right hip (with ROM 0-80[0] flexion, extension full, internal and external MACA.No.2284 of 2010 10 rotation 0-30[0] ) partial ankylosis of right knee with ROM 0-90[0] flexion. Hence, permanent partial disability of 20% was assessed by the Medical Board. The Tribunal accepted 20% permanent disability assessed by the Medical Board. 18. In view of the prolonged treatment and various procedures of treatment undergone by the claimant, 12 months loss of earnings taken by the Tribunal can be maintained. So, refixing the compensation towards **loss of earnings** the amount would be Rs.4,500x12=Rs.54,000/-. Deducting the amount already awarded by the Tribunal, balance would be **Rs.24,000** (Rs.54,00030,000). 19. Towards bystander expense Tribunal awarded Rs.14,500/- total. He had undergone total 96 days inpatient treatment. The accident was in the year 2005. So, Rs.200/- per day can be taken towards bystander expenses. Hence, towards **bystander expenses** the claimant is entitled to get Rs.200x96=Rs.19,200/-. Deducting the amount already awarded balance would be **Rs.4,700/-** (Rs.19,200-14,500). Discharge summaries and other treatment records produced from the side of MACA.No.2284 of 2010 11 the claimant would show that he had undergone inpatient treatment in various hospitals on various occasions. Hence, Rs.1,000/- awarded towards transportation expenses seems to be very low. Hence, Rs.5,000/- is awarded towards **transportation expenses** . Deducting the amount already awarded by the Tribunal balance would be **Rs.4,000/-** (Rs.5,000-1,000). No amount has been awarded towards extra nourishment. In view of the prolonged inpatient treatment for 96 days an amount of **Rs.6,000/-** awarded towards **extra nourishment** . Towards pain and suffering Rs.15,000/- only awarded by the Tribunal. In view of the serious nature of injuries and prolonged treatment undergone by the claimant Rs.30,000/- can be awarded towards **pain and suffering** . Deducting the amount already awarded balance would be **Rs.15,000/-** (Rs.30,000-15,000). 20. As per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** the MACA.No.2284 of 2010 12 suitable multiplier to be applied is '15', since, the claimant was 40 years at the time of accident. Towards **permanent disability** the claimant is entitled to get Rs.4,500x12x15x20/100=Rs.1,62,000/-. Deducting the amount already awarded balance would be **Rs.72,000/-** (Rs.1,62,000-90,000). In view of the injuries and the permanent disability of 20% assessed by the Medical Board an amount of **Rs.15,000/-** is further awarded towards **loss of amenities** . So, the claimant is entitled to get enhanced compensation of **Rs.1,40,700/-** (Rs.24,000 + 4,700 + 4,000 + 72,000 + 15,000 + 15,000 + 6,000). 21. In the result, appeal allowed, appellant/claimant allowed to realise enhanced compensation of **Rs.1,40,700/- (Rupees one lakh forty thousand seven hundred only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the **date of petition ie.27.12.2005** till realisation excluding 95 days, the delay caused in filing this appeal. The 3[rd] respondent is directed to pay 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. MACA.No.2284 of 2010 13 22. The disbursement of enhanced compensation to appellant 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. 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