Santhosh s/o Balan Chettiyar v. R. Vasantha Kumar; S. Saju; The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938 MACA.No. 1578 of 2008 ( ) -------------------------- AGAINST THE AWARD IN OPMV 1216/2002 of M.A.C.T.,ATTINGAL DATED 18-072007 APPELLANT(S)/PETITIONER: --------------------------------- SANTHOSH,S/O. BALAN CHETTIYAR, SANGEETHA VILASOM, MANALAKOM, KEEZHTHONNAKKAL VILLAGE,, THIRUVANANTHAPURAM TALUK & DISTRICT REPRESENTED, BY HIS POWER OF ATTORNEY HOLDER, BALAN CHETTIYAR, S/O.KOLLAPPAN CHETTIAR, SANGEETHA VILASOM, MANALAKOM, KEEZHTHONNAKKAL THIRUVANANTHAPURAM VILLAGE & DISTRICT. BY ADV. SRI.M.DINESH RESPONDENT(S)/RESPONDENTS: -------------------------- 1. R.VASANTHA KUMAR,S/O. RAGHAVAN, BHASURA VILASOM, KATTUPUTHUSSERI,, NAVAIKKULAM, CHIRAYINKIL TALUK, TRIVANDRUM DISTRICT. 2. S.SAJU, S/O.SASIDHARAN, CHARUVILA PUTHEN VEEDU, MYLAMOODU P.O., KULATHOOPUZHA, KOLLAM DISTRICT. 3. M/S.THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY DIVISIONAL MANAGER,, DIVISIONAL OFFICE, ST.MARY VILLA,, ULLOOR, THIRUVANANTHAPURAM. R3 BY ADV. SRI.N.S.NAJEEB THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran & A. Muhamed Mustaque, JJ.** **- - - - - - - - - - - - - - - - - - - - - -- - - M.A.C.A.No.1578 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] August, 2016** ## **JUDGMENT** ## **P.N. Ravindran, J.** The appellant is the claimant in O.P.(MV) No.1216 of 2002 on the file of the Motor Accidents Claims tribunal, Attingal, a petition filed by him under section 166 of the Motor Vehicles Act, 1988 claiming the sum of Rs.5,00,000/- as compensation for the injuries sustained by him in a motor accident which took place on 16.4.2002. The appellant had in the claim petition averred that while he was travelling in a lorry owned by the first respondent and driven by the second respondent, it capsized into a river on account of the rash and negligent driving of the second respondent and in that accident he sustained serious injuries. It was stated that following the accident he was initially taken to St.Joseph's Hospital, Anchal and thereafter to Medical College Hospital, Thiruvananthapuram on the next day where he underwent treatment as an inpatient till 22.4.2002 and as an outpatient thereafter. He had also stated that during the period from 1.7.2002 to 27.8.2002 he was treated as an outpatient in the Department of Physical Medicine for gait training. The appellant contended that as a result of the accident he has become permanently disabled and will MACA 1578/2008 2 have to depend on others for the rest of his life. He had also contended that the accident took place solely on account of the rash and negligent driving of the second respondent. The appellant had further averred that at the relevant time he was employed as a cleaner-cum-mechanic in the lorry owned by the first respondent and that he was earning a monthly income of Rs.6,000/-. 2. Though notice was served, the owner and driver of the lorry did not enter appearance, with the result, they were set ex-parte. The third respondent, the insurer of the lorry entered appearance and filed a written statement admitting insurance coverage for the lorry but contending that the compensation claimed is exorbitant and excessive. The insurer also disputed the age, income and occupation of the injured as also the nature of the injuries and the period of treatment undergone by the victim of the accident. 3. Before the tribunal, no oral evidence was adduced on either side. However, on the side of the claimant Exts.A1 to A10 series were produced and marked. After considering the rival contentions, the tribunal held mainly relying on Ext.A1 F.I.R. and Ext.A4 charge sheet that the accident took place on account of the rash and negligent driving of the second respondent. The tribunal also held that in that accident the claimant sustained serious injuries. The tribunal thereafter awarded an aggregate sum of Rs.63,087/- as compensation, as MACA 1578/2008 3 detailed below: Loss of earning : Rs. 2,100/Transport expenses : Rs. 600/Extra nourishment : Rs. 500/Damage to clothing : Rs. 400/Bystander's expenses : Rs. 500/Cost of medicine : Rs. 1,863/Pain and suffering : Rs.10,000/Permanent disability : Rs.47,124/---------------Total : Rs.63,087/========= In view of the fact that the third respondent insurer had admitted insurance coverage and had not pleaded or proved breach of policy conditions, the tribunal directed the insurer to satisfy the award. The claimant has, dissatisfied with the quantum of compensation awarded by the tribunal, filed this appeal. 4. We heard Sri C.S.Sumesh, learned counsel appearing for the appellant and Sri N.S. Najeeb, learned counsel appearing for the third respondent insurer. We have also gone through the pleadings and the materials on record. The fact that the claimant sustained serious injuries in a motor accident which took place on 16.4.2002 is not in dispute. It has come out in evidence that he had undergone treatment as an inpatient initially at St. Joseph's Hospital, Anchal and later at MACA 1578/2008 4 Medical College Hospital, Thiruvananthapuram. He was treated as inpatient during the period from 16.4.2002 till 22.2.2002. He had in the accident sustained the following injuries: 1. Fracture left of left wing of sacrum; 2. Subluxation of left sacroiliac joint; and 3. Fracture of superior and inferior pubic rami on the right side. Ext.A9 disability certificate issued by Dr. Samson Nessiah, Professor of Orthopaedics, Medical College, Thiruvananthapuram discloses that following the accident the claimant who had undergone treatment as an inpatient till 22.4.2002 had continued treatment as an outpatient and that from 1.7.2002 to 27.8.2002 he had undergone treatment in the Department of Physical Medicine. The doctor has in Ext.A9 certified that the temporary disability arising out of the aforesaid injuries is 100% for a period of three months from the date of injury and that as on 29.11.2005 the claimant had a whole body disability of 11%. The reasons which weighed with the doctor in assessing the percentage of disability as 11% have also been set out in Ext.A9. 5. From the materials before us, it is evident that the claimant would have had to meet the expenses of a bystander during the period from 16.4.2002 to 22.4.2002. The tribunal has awarded only Rs.500/towards bystander's expenses. In our opinion, having regard to the ground realities, the tribunal ought to have awarded Rs.150/- per day MACA 1578/2008 5 as bystander's expenses. The claimant is thus entitled to be awarded the sum of Rs.1,200/- as compensation under the head bystander's expenses. The tribunal has, as stated earlier, awarded only Rs.500/-. We accordingly award a further sum of Rs.700/- towards bystander's expenses. Considering the nature of injuries sustained, the period of treatment as also the nature of treatment undergone and having regard to the fact that his right leg was in plaster cast and was immobilised, the claimant would have had to travel to Medical College, Thiruvananthapuram for treatment as an inpatient. He would have also to travel from Anchal where he was hospitalised initially, to Thiruvananthapuram to undergo treatment, in a motor car. The tribunal has awarded only the sum of Rs.600/- as compensation towards expenses for transport. Having regard to the period of hospitalisation and the length of treatment undergone especially as an inpatient, as the claimant was immobilised, we are of opinion that a minimum amount of Rs.3,000/- should have been awarded under the head expenses for transport. We accordingly award a further sum of Rs.2,400/- under that head. The tribunal has awarded to the appellant claimant only Rs.10,000/- as compensation for pain and suffering. Having regard to the gravity of the injury sustained, the period of hospitalisation and also the length of treatment, we are satisfied that a further sum of Rs.10,000/- should be awarded as compensation under MACA 1578/2008 6 the head pain and suffering. We accordingly award a further sum of Rs.10,000/- as compensation for pain and suffering. 6. The tribunal has awarded compensation for loss of earnings only for a period of one month, taking the monthly income of the claimant as Rs.2,100/-. The claimant had in the claim petition averred that he was earning a monthly income of Rs.6,000/-. He had also stated that he had studied upto SSLC and had passed the ITI certificate examination. Initially he was working as an apprentice trainee in a motor workshop and later the first respondent, the owner of the lorry who owns a fleet of goods vehicles, deputed him to work as cleaner-cum-mechanic in the lorry involved in the accident. The accident took place on 16.4.2002. Having regard to the wage structure prevailing at the relevant time and the ground realities, we are of the opinion that on a modest estimate the monthly income of the claimant can be taken as Rs.4,500/-. Ext.A9 discloses that he was immobilised for a period of three months. Having regard to the nature of injuries sustained, he would have been disabled from doing any work at least for a period of four months. We are therefore of the considered opinion that the sum of Rs.18,000/- has to be awarded as compensation for loss of earnings for a period of four months. The tribunal has awarded only Rs.2,100/- under that head. We accordingly award a further sum of Rs.15,900/- as compensation for loss of MACA 1578/2008 7 earnings for four months. 7. The tribunal has awarded to the appellant claimant the sum of Rs.47,124/- as compensation for permanent disability taking the monthly income as Rs.2,100/-. It has not taken into account future prospects for the said purpose. The Apex Court has in **Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd.** {(2014) 2 SCC 735} held that future prospects can be taken into account even in personal injury cases. The claimant was aged 23 years at the time of accident. The multiplier to be applied is 18 and not 17 as selected by the tribunal. As we have estimated the monthly income of the claimant to be Rs.4,500/-, applying the principles laid down by the Apex Court in **Syed Sadiq's case** (supra), the compensation payable to the appellant claimant under the head permanent disability will be Rs.1,60,380/- (Rs.4,500/- x 150% = Rs.6,750/- x 12 x 18 x 11/100). The tribunal has awarded only the sum of Rs.47,124/-. We accordingly award to the appellant claimant an additional sum of Rs.1,13,256/- as compensation under the head permanent disability. 8. The tribunal has not awarded to the appellant claimant any amount towards loss of amenities. Taking into account the seriousness of the injury, the period of hospitalisation and the length of treatment, we are of the opinion that on a modest estimate, the sum of MACA 1578/2008 8 Rs.20,000/- can be awarded as compensation under the head loss of amenities. We accordingly award the sum of Rs.20,000/- as compensation for loss of amenities. The compensation awarded under the other heads does not in our opinion call for any enhancement. We accordingly allow the appeal in part and award to the appellant claimant an additional sum of Rs.1,62,256/- (Rs.700/-+ Rs.2,400/-+Rs.10,000/-+Rs.15,900/- + Rs.1,13,256/- + Rs.20,000/-) as compensation in addition to the compensation awarded by the tribunal. The third respondent insurer should deposit the said amount together with interest at 9% per annum from the date of petition till the date of deposit, within three months from today. Upon such deposit being made, the amount deposited shall be disbursed to the claimant. The parties shall suffer their respective costs in this court. ## **(P.N. Ravindran, Judge)** ## **(A. Muhamed Mustaque, Judge)** ## **kav/**