Santosh Kumar T.K. v. V. Janardhana Pai, Suresh G., The Branch Manager, The New India Assurance 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. 1515 OF 2013** **(FOR ENHANCING THE AWARD PASSED IN O.P.(M.V) NO.331/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA, DATED 29.11.2012)** ## **APPELLANT/PETITIONER:** SANTHOSH KUMAR T.K., AGED 37 YEARS S/O.LATE KARUNAKARAN, SANTHOSH BHAVAN, KALAVOOR P.O., MANNANCHERRY PANCHAYATH, WARD NO.21, ALAPPUZHA. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ## **RESPONDENTS/RESPONDENTS:** 1 V.JANARDHANA PAI KANNEZHATHU HOUSE, CMC/15, CHERTHALA, ALAPPUZHA DISTRICT, PIN-688524. 2 SURESH.G., S/O.GANGADHARAN, NIKARTHIL HOUSE, KUTHIATHODU GRAMA PANCHAYATH, WARD NO.3, KUTHIATHODU P.O., ALAPPUZHA. 3 THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, NEAR TOWN HALL, ALAPPUZHA, PIN 688001 BY ADVS. BIJU ABRAHAM VPK.PANICKER SRI.V.P.K PANICKER-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.1515 of 2013 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (MV) No.331/2007 on the file of Motor Accidents Claims Tribunal, Alappuzha. 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 (herein after be referred as claimant) in a motor accident occurred on 29.8.2006 at about 2.30 p.m. While the claimant was riding his motorcycle bearing Reg.No.KL/4-S 3338, due to hit with goods autorickshaw bearing Reg.No.KL-04/M-5842 driven by the 2[nd] respondent. 2. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent. 1[st ] respondent is the owner of the offending vehicle. 3[rd] respondent is the insurer. Total compensation of Rs.6,00,000/- has been claimed. 3. 1[st] and 2[nd] respondents filed joint written statement contending that 2[nd] respondent had valid driving license and the vehicle had valid insurance coverage with the 3[rd] respondent. MACA.No.1515 of 2013 3 Rashness and negligence on the part of the 2[nd] respondent is denied. The claimant was put to strict proof regarding the averments in the claim petition with regard to the income and occupation. 4. 3[rd] respondent/insurer filed separate written statement admitting the policy coverage with respect to the offending vehicle. It is also contended that compensation claimed under various heads are highly excessive and exorbitant. 5. Exhibits A1 to A18 series were marked from the side of the claimant. PW1 examined. There was no oral evidence from the side of respondents. Tribunal on evaluating the pleadings as well as the evidence, came to a conclusion that the accident happened due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent. 3[rd] respondent insurer was held liable to make good the loss sustained by the 1[st] respondent. The Tribunal awarded a total compensation of Rs.2,19,189/-. 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. MACA.No.1515 of 2013 4 7. 1[st] respondent was duly served with notice, there was no appearance. Service of notice on 2[nd] respondent is dispensed with at the risk of the appellant, since, 3[rd] respondent admitted the policy coverage with respect to the offending vehicle. Adv.Sri.V.P.K.Panicker appeared on behalf of the 3[rd] respondent. Lower court records were called for and perused. Both sides were heard. 8. According to the learned counsel for the appellant, the claimant was a carpenter and claimed monthly income of Rs.7,500/-. But the Tribunal taken the monthly income notionally as Rs.4,500/- which according to him is very low. The compensation awarded towards bystander expenses as well as percentage of disability taken is very low. Hence, the claimant seeks for enhancement under those heads. 9. 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. It is also contended that no documents as such has been produced to prove that claimant is a carpenter. The Tribunal taken MACA.No.1515 of 2013 5 the income notionally as Rs.4,500/-. 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 age of 35 years, notionally as Rs.4,500/-. 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/-. 12. According to the learned counsel for the claimant, Exhibit A10 attested copy of identity card and pass book issued by Kerala Construction Worker Welfare Fund Board has been produced to prove the occupation of the claimant. It would show that he is the member of the said Board. It does not prove his occupation as carpenter. However, taking into account pleadings as well as Exhibit A10, the monthly income of the claimant can notionally taken as MACA.No.1515 of 2013 6 Rs.6,000/-. 13. 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 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 MACA.No.1515 of 2013 7 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. 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 MACA.No.1515 of 2013 8 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. 17. The claimant in this case, sustained following injuries: both bone fracture of left forearm, Abrasion over left elbow and left big toe. Exhibit A7 is the discharge card issued from District Hospital, Alappuzha. He had undergone inpatient treatment for 20 days. Exhibit A9 is the disability certificate issued by Lecturer in Orthopedics Medical College Hospital, Alappuzha. Exhibit A9 disability certificate disclose that the claimant was treated with open reduction and internal fixation with DCP and bone grafting. At the time of examination the claimant complained of pain forearm on lifting heavy object. The Doctor assessed permanent disability of 17%. So, taking into account the nature of injuries and treatment undergone by the claimant loss of earnings can be taken for 5 months. Towards **loss of earnings** the claimant is entitled to get Rs.6,000x5=Rs.30,000/-. Deducting the amount already awarded, balance would be **Rs.12,000/-** (Rs.30,000-18,000). Towards bystander expense Tribunal awarded Rs.2,000/-. It has come out MACA.No.1515 of 2013 9 that he had undergone inpatient treatment for 20 days and the accident was in the year 2006. Rs.200/- per day can be taken towards **bystander expense** ie.Rs.200x20=Rs.4,000/-. Deducting the amount already awarded, balance would be **Rs.2,000/-** (Rs.4,000-2,000). PW1 the Doctor certified 17% permanent disability that has been taken by the Tribunal for computing the future loss of earning power. So re-fixing the amount towards **future loss of earning power** Rs.6,000 x 16 x 12 x 17/100 = Rs.1,95,840/-. Deducting the amount already awarded by the Tribunal balance would be **Rs.48,960/-** (Rs.1,95,840-1,46,880). So, the claimant is entitled to get enhanced compensation of Rs.62,960/- rounded to Rs.63,000/- (Rs.48,960+2,000+12,000). 18. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.63,000/- (Rupees sixty three thousand only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition till realisation excluding 85 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.1515 of 2013 10 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 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