Salam v. K.K. Manoharan, Alimon and United India Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944** **MACA NO. 2263 OF 2012** **AGAINST THE AWARD DATED 12.6.2012 MADE IN OP(MAC) 266/2011 ON THE** **FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR** ## **APPELLANT/PETITIONER:** SALAM, S/O KUNJUMUHAMMED, RESIDING AT 'AYUB MANZIL', KUTTUSAKKANAKATH HOUSE P.O.PONNANI NAGARAM, MALAPPURAM DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** 1 K.K.MANOHARAN RESIDING AT KOTHAMKULANGARA HOUSE, ALATHUR (VIA) THAVANOOR P.O., MALAPPURAM - 679 573. 2 ALIMON, S/O.MOHAMMED RESIDING AT MANKUTHIPARAMBIL HOUSE, KADANCHERY KALADI, MALAPPURAM -679 582. 3 UNITED INDIA INSURANCE COMPANY LIMITED AMBADY BUILDING, WESTERN WING, C.V.JUNCTION, PONNANI MALAPPURAM - 679 577. BY ADV SRI.S.ARUN RAJ - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2263 OF 2012 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (M.V) No.266/2011 on the file of Motor Accidents Claims Tribunal, Tirur. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation for the injury sustained by the appellant/claimant (hereinafter be referred as the claimant). 2. It is alleged that the accident occurred on 15.9.2010, due to hit by a bus bearing Reg.No.KL-10/V-1168 driven by the 2[nd] respondent in a rash and negligent manner. 1[st] respondent is the owner of the vehicle and 3[rd] respondent is the insurer. The claim is for a total amount of Rs.1,93,500/-. 3. Before the Tribunal, 1[st] and 2[nd] respondent remained exparte. 3[rd] respondent insurer filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence on the part of the 2[nd] respondent is denied. 4. Exhibits A1 to A8 marked from the side of the claimant. There was no oral evidence from either side. Tribunal on evaluating MACA NO. 2263 OF 2012 3 the pleadings as well as documents, came to a conclusion that the accident happened due to the rash and negligent driving of the bus by the 2[nd] respondent. 3[rd] respondent is held liable to indemnify the 1[st] respondent. The Tribunal awarded a total compensation of Rs.56,500 /-. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 6. Service of notice is complete as against 1[st] respondent. Notice to 2[nd] respondent was dispensed with at the risk of the appellant. Adv.S.Arun Raj, appeared on behalf of the 3[rd] respondent/insurer. Heard the learned counsel for the appellant and also the learned Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. 7. The main contention of the learned counsel for the appellant is with respect to the monthly income fixed. According to the learned counsel for the claimant, the claimant was aged 44 years at the time of accident. He was a fish merchant and claimed a MACA NO. 2263 OF 2012 4 monthly income as Rs.4,000/-. But the Tribunal taken the monthly income as Rs.3,300/- which according to the learned counsel for the claimant is very low. He would also contend that the claimant sustained serious head injuries, but only meager compensation has been awarded by the Tribunal under various heads. Hence, he seeks for enhancement of compensation on all heads. 8. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal under various heads and no interference is called for at the instance of this Court. 9. Though, the claimant is said to be a fish merchant, no evidence as such has been adduced to prove his occupation and income. 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/-. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** the Apex Court taken the monthly income of a vegetable vendor at MACA NO. 2263 OF 2012 5 Rs.6,500/- per month, the accident in the year 2008. 10. Accident in this case was in the year 2010. Hence, monthly income claimed as Rs.4,000/- can very well be accepted in view of the settled principles of law above stated. 11. 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 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 MACA NO. 2263 OF 2012 6 be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 12. 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. 13. 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 MACA NO. 2263 OF 2012 7 prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 14. 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. 15. In this case, the claimant produced Exhibit A3 wound certificate and Exhibit A6 discharge summary. He had undergone 9 days inpatient treatment from 15.9.2010 to 23.9.2010. The diagnosis is head injury, cerebral concussion, laceration right temporal scalp, right ear pinna, cellulitis left leg, diabetes Mellitus. Diagnosis data is CT head-Left tempero parietal-lobe contusion. Diffuse edema. No ICH. Venous Doppler left leg : No DVT. The surgery on 16.9.2010, right tempero parietal scalp wound and ear lobe laceration debridement and suturing/LA. The medical bills for Rs.37,194 has also been produced. The documents produced from the MACA NO. 2263 OF 2012 8 side of the claimant would prove that the injury sustained is on his vital part ie. on his head 16. So, taking into account the facts and circumstances, loss of earning granted by the Tribunal for 2 months seem to be quite insufficient. The loss of income of 3 months is reasonable, hence, towards loss of earning the claimant seems entitled to get Rs.4,000x3=Rs.12,000/-. Deducting the amount already awarded, balance would be Rs.5,400/- (Rs.12,000-6,600). Towards bystander expense the Tribunal awarded only Rs.900/-. The accident was in the year 2010, Rs.250/- per day can be taken as bystander expense. Hence, towards bystander expense the claimant is entitled to get Rs.2,250/- (Rs.250x9). Deducting the amount already awarded the balance would be Rs.1,350/- (Rs.2,250-900). 17. The next contention of the learned counsel is with regard to pain and suffering. The compensation awarded by the Tribunal is Rs.8,000/- which according to the learned counsel is very low. The claimant had undergone 9 days inpatient treatment and in view of the nature of injuries sustained by him and other facts and circumstances MACA NO. 2263 OF 2012 9 Rs.15,000/- is awarded towards pain and suffering. Deducting the amount already awarded by the Tribunal, balance would be Rs.7,000/- (Rs.15,000-8,000). Towards loss of amenities no amount has been awarded by the Tribunal. Taking into account the nature of injuries and procedures of treatment undergone by the claimant an amount of Rs.10,000/- is awarded towards loss of amenities. So, the claimant is entitled to get enhanced compensation of Rs.23,750/(Rs.1,350+7,000+10,000+5,400). 18. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.23,750/** - **(Rupees twenty three thousand seven hundred and fifty only)** which will carry interest @ **6.5%** per annum from the date of petition excluding the period of delay of 30 days in filing the appeal. The 3rd respondent/insurer 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 claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and MACA NO. 2263 OF 2012 10 IFSC code of the branch) before the Tribunal with a copy to the 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