Sakeer Hussain s/o Sainudheen v. Dr. Jacob Mathew and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** ## **MACA NO. 1653 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 776/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **SAKEER HUSSAIN S/O.SAINUDHEEN, VASANA HOUSE, GANDHI NAGAR COLONY, VIZHIKKATHODU KARA, KOOVAPPALLY VILLAGE. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS:** **1 DR. JACOB MATHEW, S/O. MATHEW MUNDAMPALLIL HOUSE, KANJIRAPPALLY POST.686 507 2 THE MANAGER ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, CHEERANVELIL BUILDING, NH.220, KANJIRAPPALLY.686 507 BY ADVS. SRI.N.S.NAJEEB SRI.B.PREMNATH (E) SRI.PHILIP J.VETTICKATTU SRI.GEORGE CHERIAN (THIRUVALLA)** ## **OTHER PRESENT:** **SRI.PHILIP.J.VETTIKKATTU-R1** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **14.03.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING:** MACA No.1653/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.776/2009 on the file of the Motor Accidents Claims Tribunal, Pala. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation of Rs.4,74,000/-, for the injuries sustained by the claimant in a motor accident occurred on 12.06.2008 while riding the motorcycle bearing Reg.No.KL-34/ 4159 from Manimala to Kanjirappally. It is alleged that when he reached near Mannarakayam bhagom, a car bearing Reg.No.KL-2/ F 2322 which was driven by the first respondent came from the opposite side and hit the motorcycle which the appellant was riding, resulting in grievous injuries to him. It is further alleged that the accident happened due the rash and negligent driving of the car by the first respondent, owner cum MACA No.1653/2013 3 driver. Second respondent is the insurer of the offending vehicle. 2. Before the Tribunal both respondents filed written statement denying the age, occupation and income of the appellant/claimant. Rashness and negligence on the part of the first respondent is denied. It is contended that the accident happened due to the rash and negligent act of the appellant/claimant (hereinafter be referred as the claimant). It is also contended that the claimant was not holding any driving licence and he was riding the motorcycle rashly and negligently. Hence second respondent insurer denied the liability. 3. PWs 1 and 2 examined and Exts.A1 to A8 and Ext.X1 marked from the side of the claimant. RWs1 and 2 examined and Exts.B1 to B4 marked from the side of the respondent. 4. Tribunal on evaluating the evidence and facts and circumstances found that there is 80% contributory negligence on the part of the claimant. The Tribunal fixed an amount of MACA No.1653/2013 4 Rs.95,345/- as the compensation and held that the claimant was found to be entitled for 20% of the total amount and accordingly awarded an amount of Rs.19,069/- (20% of 95,345/-) with 7.5% interest from 19.09.2009 along with cost. It is also found that first respondent had no valid driving licence at the time of accident, though the vehicle was insured with the 2nd respondent. That being a violation of policy condition, 2nd respondent is directed to pay the amount and recover it from the insured/1st respondent. 5. Dissatisfied with the Award passed by the Tribunal claimant came up in appeal for the various grounds stated in the memorandum of appeal. 6. Adv.Sri. Philip J. Vettickattu appeared on behalf of first respondent and Sri.N.S.Najeeb entered appearance on behalf of the second respondent. Lower court records were called for and perused. 7. Heard both sides. 8. The main argument of the learned counsel for the MACA No.1653/2013 5 claimant is with regard to the finding of 80% contributory negligence on the part of the claimant inspite of the fact that the claimant was examined and gave evidence with regard to the rashness and negligence on the part of the first respondent. It is also his contention that it is the first respondent who had taken him to hospital and gave the history of the accident to the doctors and subsequently he has taken him to Government Hospital, Kanjirappally and thereafter to Medical College Hospital, Kottayam and there also he gave the information to the doctors regarding the incident. It is also his contention that first respondent is a Homeo Doctor practicing nearby the place of accident and he was not holding any driving licence at the time of accident and only due to his influence that the charge was laid against the claimant. 9. Learned counsel for respondents 1 & 2 on the other hand would contend that the police charge is laid against the claimant and wound certificate would reveal that he had consumed alcohol and scene mahazar further reveals that he was on the wrong side of the road and hence the Tribunal was MACA No.1653/2013 6 absolutely right in finding 80% contributory negligence on the part of the claimant. 10. On analyzing the evidence it could be seen that PW1, the claimant, has been examined and he filed chief affidavit solemnly affirming that the accident happened due to the rash and negligent driving of the first respondent, driver of the car and out of the accident he sustained grievous injuries and it was the first respondent who took him to Government hospital, Kanjirappally and influencing the Doctor wound certificate was got prepared manipulating the facts. It is also stated by him that first respondent was not having any effective driving licence. He also stoutly denied the allegation regarding the rashness and negligence attributed against him in the written statement filed by the respondents 1 & 2. It is pertinent to note that eventhough the claimant filed detailed proof affidavit attributing negligence against the first respondent, no specific question was put challenging the averments regarding negligence attributed against the first respondent. Ext.B2 is the Final Report referring the charge under Sections 279, 337 MACA No.1653/2013 7 and 338 of IPC as against the first respondent. So it would go to show that crime was registered initially against the first respondent but after investigation the case was referred as false. 11. The claimant has got a specific contention that the first respondent is a Homeo Doctor practicing in the nearby vicinity, where the accident occurred and it was due to his influence that in the police records and wound certificate it was happened to be recorded about the smell of alcohol. However the scene mahazar produced as Ext.B3 would go to show that the accident happened at a distance of about 1.45 mtrs towards east-west from eastern tar end and it has also come out that the claimant was going from south to north. It has come out that vehicle driven by the first respondent was coming from the opposite direction. The scene mahazar also would go to show that at the place of incident the road is lying straight to 100 mtrs towards north and 120 mtrs towards south. As I stated earlier the claimant has got a specific case from the beginning that it was due to the influence of the first MACA No.1653/2013 8 respondent the case was referred as false and the first respondent was examined as RW1. It is admitted that he who had taken the claimant to Government Hospital, Kanjirappally and thereafter to Medical College Hospital, Kottayam. 12. First respondent as RW1 also filed proof affidavit contending that the claimant was riding the motorcycle through the wrong side in a zigzag manner and it was because of that accident happened. It was also deposed by him that the claimant was fully drunk and it was because of his fault that the accident occurred. But during cross examination he admitted that he is a Homeo Doctor and his clinic is near to the Government Hospital, Kanjirappally and he did not have any valid driving licence at the time of accident. The alleged cause stated in Ext.B1 wound certificate is that motorcycle collided with car and smell of alcohol is noted. So the records produced from either side would go to show that as per the scene mahazar the motorcycle ridden by the claimant was on the wrong side and the police charge though was against the first respondent it was happened to be referred as false. Since MACA No.1653/2013 9 no final report has been filed, scene mahazar as such cannot be accepted. It appears that the claimant did not file any protest complaint against the refer charge. However he was examined as PW1 and deposed about the rashness and negligence on the part of the first respondent in driving the car. The wound certificate though states about the smell of alcohol it does not imply that he was under the influence of alcohol. So mere fact that there was smell of alcohol does not lead to any inference regarding the negligence on the part of the rider of the motorcycle. So also as I have already found the evidence of PW1 with regard to the rashness and negligence on the part of the first respondent in driving the car at the time of accident could not be discredited. The road at the place of incident was also a straight road. So taking all those factors into account the rashness and negligence on the part of the claimant cannot be fixed at 80% and it can be reduced to 60%. So negligence on the part of the first respondent is enhanced to 40% instead of 20% as found by the Tribunal. MACA No.1653/2013 10 13. Next is with regard to the income: The claimant is a coolie and he has been examined as PW1 and states about the income as Rs.6,000/- per month, though he could not produce any document to substantiate that fact. 14. 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, in the case of a vegetable vendor, aged 24 years, Apex Court fixed the monthly income notionally as Rs.6,500/-. 15. At the time of accident the claimant was aged 40 years and the accident in this case occurred on 12.06.2008. Hence his income can very well be accepted as Rs.6,000/-, as MACA No.1653/2013 11 ## claimed by him. 16. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt 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 MACA No.1653/2013 12 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 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. 17. 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). 18. In paragraph No.5 of the above judgment, the heads MACA No.1653/2013 13 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. 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 MACA No.1653/2013 14 of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 19. In this case the claimant sustained the following injuries: 1) Fracture (Rt) femur 2) Lacerated wound forehead 2.5x1c.m 3) Multiple abrasion forehead. 4) Dislocation (Rt) hip. 5) Fracture shaft of (Rt) femur. 6) Undisplaced fracture superior pole of (Rt) patella 7) Fracture lower radius 8) Pain and tenderness all over the body. 20. Ext.A5 is the discharge card issued from Medical College Hospital, Kottayam, would prove his admission from 12.06.2008 to 17.07.2008 and the diagnosis noted as case of posterior dislocation (R) hip, fracture shaft of femur (R), undisplaced fracture superior pole of (R) patella, fracture lower radius (R). He was treated by CMR of post dislocation, K. nailing for shaft of femur fracture, CMR and BE slab followed by cast for fracture radius and cylinder slab for MACA No.1653/2013 15 fracture patella. So the discharge summary and the wound certificate would prove the serious nature of injuries sustained by him and the period of inpatient treatment undergone by him. So the loss of earnings for three months taken by the Tribunal can be approved. 21. Ext.X1 is the disability certificate issued by the Medical Board certifying 8% permanent partial disability for the injuries to right lower limb and right wrist during the accident. Tribunal taking into account the facts and circumstances taken the disability at 7%. Having regard to the facts and circumstances and especially in view of the certificate by the Board that 8% permanent partial disability for the injuries to right lower limb and right wrist, permanent disability taken at 7% by the Tribunal can be approved. 22. The claimant was 40 years old at the time of accident. Hence as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & 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 '15' MACA No.1653/2013 16 and not '16' as applied by the Tribunal. Thus the compensation towards future loss of earning power would be Rs.75,600/[6,000x12x15x7/100]. 60% of that will come to Rs.45,360/-. Deducting 60% contributory negligence, balance would be - Rs.30,240/ [75,600-45,360]. Deducting the amount already awarded by the Tribunal under this head, balance would be Rs.20,832/[30,240-9,408 (20% of 47,040)]. Claimant is further entitled to get Rs.18,000/- [6,000x3] under the head loss of earning. 60% of it will come to Rs.10,800/-. Deducting 60%, the balance would be Rs.7,200/- [18,000-10,800]. From that amount, the amount already awarded by the Tribunal should be deducted. Then balance would be Rs.5,100/[7,2002,100 (20% of 10,500)]. Claimant is further entitled to get 20% of the compensation under the heads which are not enhanced by this Court. i.e. Rs.7,561/[(20% of 37,805) [1,500+500+500+7,000+1,305+20,000+7,000]. 23. So claimant is entitled to get total enhanced compensation of Rs.33,493/- [20,832+5,100+7,561], which is rounded off to Rs.33,500/-. MACA No.1653/2013 17 24. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.33,500/- (Rupees thirty three thousand five 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 123 days delay caused in filing the appeal). The second 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. 25. Pay and recovery ordered by the Tribunal is maintained since first respondent did not have valid driving licence at the time of accident. 2[nd] respondent - insurer is directed to pay the enhanced compensation to the appellant at the first instance and recover it from the first respondent, owner cum driver. [See: Parminder Singh v. New India Assurance Co.Ltd & Ors. (AIR 2019 SC 3128]; Oriental Insurance Co. Ltd. v. Poulose [2015 (1) KLT 682 (L.B.)]. 26. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank MACA No.1653/2013 18 Passbook 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**