SANITH S/O LATE BHARATHAN v. ORIENTAL INSURANCE CO.LTD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943** **MACA NO. 1014 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 81/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **KOLLAM** ## **APPELLANT/PETITIONER:** **SANITH** **S/O.LATE BHARATHAN, MUKALUVILA THEKKATHIL, IVERKALA WEST, KUNNATHUR TALUK, KOLLAM** **BY ADV SRI.PRATHEESH.P** ## **RESPONDENT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE CO.LTD KOTTARAKKARA KOLLAM 691531** **BY ADV SRI.A.R.GEORGE** ## **OTHER PRESENT:** **SRI.A.R GEORGE-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1014/2012 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV).81/2009 on the file of Motor Accidents Claims Tribunal, Kollam. The claim petition has been filed under Sections 140, 165 and 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.5,50,000/- on account of the injuries sustained by the appellant/claimant in a motor accident. 2. It is alleged that on 23.11.2008 while the appellant was riding a motorcycle bearing Reg.No.KL-23/A 3865 through Bharanikkavu – Adoor public road an ambassador car bearing Reg.No.KL-8/D 8325 hit the motorcycle, resulting in severe injuries to the appellant/claimant (hereinafter be referred as the claimant). Second respondent is the driver of the car. First respondent is the employer of the 2[nd] respondent. Third respondent is the insurer. 3. Before the Tribunal, respondents 1 and 2 remained exparte. Third respondent insurer filed written statement MACA No.1014/2012 3 admitting the policy coverage with respect to the offending vehicle. It is contended that there was violation of policy conditions and further the negligence on the part of the second respondent is denied. 4. PWs 1 and 2 examined, Exts.A1 to A19 and Ext.C1 marked from the side of the claimant. 5. On evaluating the evidence as well as other circumstances the Tribunal found that the second respondent was responsible for the accident and the third respondent, insurer of the offending vehicle, was held liable to make good the loss sustained by the first respondent. Total compensation of Rs.4,06,000/- with interest at the rate of 7.5% per annum from the date of petition till realization was awarded. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal the claimant came up in appeal for the various grounds stated in the memorandum of appeal. 7. Third respondent/insurer alone has been made as respondent in this appeal, who has appeared through Adv.Sri.A.R. George. Lower court records were called for and MACA No.1014/2012 4 perused. 8. Heard both sides. 9. According to the learned counsel for the claimant, the claimant was a rubber tapper. PW2 is the employer of the claimant. But evidence of PW2 was not accepted by the Tribunal. Extent of property held by him is only 80 cents in which according to him 235 rubber trees are planted. Tapping is also on alternated days. So salary of Rs.7,000/- alleged to have been given by PW2 to PW1, the claimant, as rightly found by the Tribunal, cannot be taken as true. 10. In Ramachandrappa v. The 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/-. 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 MACA No.1014/2012 5 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 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 MACA No.1014/2012 6 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. In this case accident was in the year 2008. Claimant was only 22 years at the time of accident and he is claimed to be a rubber tapper. So in view of the above settled principles, his monthly income can notionally be taken as Rs.6,500/-. 13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 201 0 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 MACA No.1014/2012 7 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 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 MACA No.1014/2012 8 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). 15. In paragraph No.5 of the above judgment, 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. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimant, the compensation would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been MACA No.1014/2012 9 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. 16. In this case, the claimant sustained the following injuries: Comminuted open fracture both bones of right leg distal 1/3[rd] Fracture mid shaft right femur. 17. Ext.A8 is the discharge summary, as per which, the claimant sustained Type III A open fracture tibia lower 3[rd] right and fracture femur junction and middle and upper 3[rd] . He was admitted on 23.11.2008 and discharged on 24.12.2008. In Ext.A9 treatment certificate also the same injuries are noted. MACA No.1014/2012 10 Ext.A10 is the other discharge certificate, in which, the injuries noted are Bifocal tibia right and fracture femur right. He was admitted on 26.10.2009 and discharged on 06.11.2009. Ext.A11 is the yet another discharge summary proving his admission is on 29.09.2011 to 03.10.2011. Ext.A12 is the treatment certificate. It would show that he had undergone wound debridement, POP slab given and skeletal traction applied. Interlocking nailing for right femur and bifocal ilizarov ring fixation for right leg done and he was discharged on 24.12.2008. So, in total, he had undergone inpatient treatment for 47 days. The discharge summaries as well as the treatment certificate produced from the side of the claimant would prove the prolonged treatment and the various procedures undergone by him. So taking into account those factors, the loss of earnings for six months as awarded by the Tribunal can be maintained. Re-fixing the amount claimant would get Rs.15,000/- [6,500x6 – 24,000]. Towards bystander expenses, Tribunal awarded only Rs.5,875/- at the rate of Rs.125/- per day. Since the accident was in the year 2008, an MACA No.1014/2012 11 amount of Rs.250/- per day can be taken towards bystander expenses. So the appellant would get an amount of Rs.5,875 /- [250x47 – 5,875]. Towards extra nourishment an amount of Rs.3,000/- was awarded. According to the learned counsel for the claimant, the claimant had undergone inpatient treatment for 47 days. Various treatment procedures are also undergone by him. So taking into account the facts and circumstances, Rs.5,000/- as claimed by the claimant can very well be accepted on the head extra nourishment. Deducting the amount already awarded, the claimant would get an amount of Rs.2,000/- [5,000-3,000]. 18. Next is with regard to the disability compensation awarded by the Tribunal. According to the learned counsel, though Medical Board issued Ext.C1 disability certificate certifying 20% permanent disability, Tribunal took it only 12%, which is very low. It is true that Ext.C1 disability certificate would not specifically state whether it is permanent whole-body disability. However, taking into account the nature of injuries and the prolonged treatment undergone by him as MACA No.1014/2012 12 well as the difficulties and disability noted in Ext.C1 certificate, permanent whole-body disability can be taken at 15% instead of 12% taken by the Tribunal. So compensation towards permanent disability, claimant is entitled to get is Rs.1,06,920/ - [6,500x12x18x15/100 – 1,03,680]. 19. In the result, the claimant is allowed to realize enhanced compensation of Rs.1,29,795/- [15,000+5,875+ 2,000+1,06,920], which is rounded off to Rs.1,29,800/(Rupees one lakh twenty nine thousand eight hundred only), which will carry interest at the rate of 7.5% per annum from the date of petition till realisation. Third respondent-insurer 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. 20. The disbursement of additional 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. MACA No.1014/2012 13 Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. Sd/- **shg/-** **M.R.ANITHA JUDGE**