Sasidharan v. Tomy Thomas Olickal, P.C. George and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** ## **MACA NO. 2524 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 827/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **KOTTAYAM** ## **APPELLANT/PETITIONER:** **SASIDHARAN AGED 54 YEARS S/O.GOPALAN, ARRECKAL (H), PALLICKATHODU P.O, KOTTAYM BY ADV SRI.A.P.SUBHASH** ## **RESPONDENTS/RESPONDENTS:** **1 TOMY THOMAS OLICKAL THAKADIEL KANJIRAMATTOM P.O ANICADU, KOTTAYAM 2 P.C GEORGE, PULICKAL, KOZHUVANAL P.O KOTTAYAM 3 THE ORIENTAL INSURANCE COMPANY LTD, KOTTAYAM BY ADVS. SRI.P.S.APPU SRI.A.R.NIMOD SRI.T.C.SURESH MENON SMT.A.SREEKALA** ## **OTHER PRESENT:** **A.SREEKALA-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2524/2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.827/2009 on the file of Motor Accidents Claims Tribunal, Kottayam (in short, the Tribunal). Claim petition has been filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) for compensation of Rs.13,94,000/-, which was limited to Rs.8,00,000/- for the injuries sustained by the appellant/claimant out of a motor accident occurred on 22.05.2008. 2. It is alleged that while the claimant was riding motorcycle bearing registration No.KCT 6772 and reached at Kayyoori Bhagam, it hit with another motorcycle bearing Reg.No.KL 35/9482 ridden by the first respondent, resulting in serious injuries to the appellant/claimant. Second respondent is the registered owner of the motorcycle and third respondent is the insurer of the offending vehicle. It is alleged that the MACA No.2524/2012 3 accident happened due to the rash and negligent riding of the motorcycle by the first respondent. 3. Before the Tribunal, respondents 1 and 2 filed written statement denying the averments regarding the rashness and negligence on the part of the first respondent and contending that the accident happened due to the rash and negligent driving of the motorcycle ridden by the appellant/claimant (hereinafter be referred as the claimant). 4. Third respondent filed separate written statement admitting the policy coverage with respect to the offending vehicle. Claimant was also put to strict proof regarding the age, occupation and income alleged in the claim petition. 5. There was no oral evidence from either side. Ext.A1 to A8 and Ext.X1 marked from the side of the claimant. 6. On evaluating the pleadings as well as the documents produced from the side of the claimant, Tribunal found that the first respondent is responsible for the accident and third respondent is held liable to indemnify the second MACA No.2524/2012 4 respondent, insured. Tribunal awarded a total compensation of Rs.2,40,995/- with interest at the rate of 7.5% per annum from the date of petition till realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimant came up in appeal for various grounds stated in the memorandum of appeal. 8. First respondent filed vakalath through advocate. Service is complete as against the second respondent. Third respondent appeared through Adv.A. Sreekala. 9. Heard the learned counsel for the appellant as well as the learned counsel for the insurer. Lower courts were called for and perused. 10. According to the learned counsel for the claimant, the claimant is a Rubber-tapper, aged 54 years and claimed a monthly income of Rs.6,000/-. But the Tribunal took the monthly income as Rs.3,500/- for calculating the permanent disability and Rs.4,000/- for calculating loss of earning without any basis. She would also contend that though the claimant sustained grievous injuries and undergone inpatient treatment MACA No.2524/2012 5 for 23 days and Ext.X1 disability certificate certifying 58% permanent disability has been produced, Tribunal arbitrarily taken the permanent disability at 35%, which is illegal and she seeks for enhancement of compensation on all heads. 11. Learned counsel for the insurer on the other hand contended that a just and reasonable compensation has already been awarded and no enhancement is required in this appeal. 12. Though claimant produced Ext.A5, the Employment Certificate of the claimant, the employer was not examined and the certificate was not properly proved. However in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court taken the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. Following that principle, 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, MACA No.2524/2012 6 Apex Court fixed the monthly income notionally as Rs.6,500/-. 13. So taking into account the above principles and the date of accident as 22.05.2008 as well as the facts and circumstances the income claimed as Rs.6,000/- can be accepted. Accordingly the income of the claimant is fixed as Rs.6,000/- per month. 14. 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 MACA No.2524/2012 7 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 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. MACA No.2524/2012 8 15. 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). 16. In paragraph No.5 of the above decision, 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 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 MACA No.2524/2012 9 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. 17. In the present case, the claimant produced Ext.A6 Discharge Certificate for Police Cases issued from Directorate of Medical Education, Medical College Hospital, Kottayam and Ext.A7 discharge card issued from Medical College Hospital, Kottayam, those would prove that he had admitted in the hospital on 22.05.2008 with the alleged history of RTA and was discharged on 14.06.2008. MRI revealed fracture disc bulge C3 to C7. He had undergone inpatient treatment for 23 days in Medical College Hospital, Kottayam and he sustained cervical spine - mild diffuse annular bulges (C4-C7, C3-C7 central disc protrusion). He was examined by a Medical Board and issued certificate dated 04.01.2012 certifying permanent MACA No.2524/2012 10 disability of 58%. But the certificate did not state it as wholebody. So Tribunal taken the percentage of disability as '35'. 18. According to the learned counsel for the claimant, the claimant was a rubber-tapper and the disability to cervical spine as well as the disc protrusion would affect his loss of earning considerably. So the functional disability of the claimant can very well be taken at 44% instead of 35% taken by the Tribunal. 19. The learned counsel for the claimant relies on Pappu Deo Yadav v. Naresh Kumar and Ors. [2020 KHC 6547] and seeks for compensation towards future prospectus in view of the disability sustained by the claimant. The claimant is entitled to get future prospects since the disability is taken at 44%. The claimant is aged 54 years, hence as per Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] he is entitled for 10% future prospects. So the monthly income of the claimant can be taken as Rs.6,600/- [6,000+600 (10% of 6,000/-)]. So towards permanent disability, the claimant is 11 entitled to get Rs.3,83,328/- [6,600x12x11x44/100]. Deducting the amount already awarded, the claimant would get Rs.2,21,628/ - [3,83,328-1,61,700]. Loss of earning for five months has been taken by the Tribunal. Taking into account the fact that the claimant was an aged man of 54 years and sustained injuries to cervical spine - mild diffuse annular bulges (C4-C7, C3-C7 central disc protrusion) and suffered 44% permanent whole body disability, being a rubber-tapper he might have been prevented from going for job for five months. So loss of earning taken for five months by the Tribunal can be approved. So the loss of earnings for five months is referred as Rs.30,000/- [6,000x5]. Deducting the - amount already awarded, the balance would be Rs.10,000/ [30,000-20,000]. 20. Towards bystander expense, an amount of Rs.4,600/has been awarded. The claimant had undergone 23 days inpatient treatment. The accident was in the year 2008. So Rs.250/- per day can be taken towards expenses of bystander. So the claimant will be entitled to get an amount of Rs.5,750/- MACA No.2524/2012 12 [250x23]. Deducting the amount already awarded, the balance would be Rs.1,150 /- [5,750-4,600]. towards pain and suffering an amount of Rs.25,000/- can be awarded in view of the nature of injuries and the period of treatment undergone by the claimant. So deducting the amount already awarded, the claimant will be entitled to get Rs.3,000/- [25,000-22,000]. 21. In the result, appellant/claimant is allowed to realise enhanced compensation of Rs.2,35,778/-, which is rounded off to Rs.2,35,800/ - (Rupees two lakhs thirty five thousand eight hundred only) [2,21,628+10,000+1,150+3,000], which will carry interest at the rate of 6% per annum (excluding 84 days delay caused in filing the appeal) 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. 22. 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 13 MACA No.2524/2012 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/-** **M.R.ANITHA** **JUDGE** **shg/**