Satheesh Kumar v. Aneesh, P.K. Ravi and The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 29TH DAY OF JULY 2020 / 7TH SRAVANA, 1942** **MACA.No.2171 OF 2014** **AGAINST THE AWARD IN O.P.(MV)No.756/2010 DATED 26-07-2011 ON THE FILES OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **SATHEESH KUMAR, AGED 30 YEARS S/O.GOPALAN NAIR, RESIDING AT MUTTIL PARAMBIL HOUSE, P.O.KUPPAYAKKODU, KOZHIKODE - 673580.** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN** ## **RESPONDENTS/RESPONDENTS:** **1 ANEESH, AGE NOT KNOWN, RESIDING AT 5/302, KIZHAKKAYIL HOUSE, P.O.PUDUPPADI, KOZHIKODE, PIN-673 586. 2 P.K.RAVI, AGED 41 YEARS S/O. KELU, RESIDING AT PUZHUKUNNUMAL HOUSE, P.O.PERUMPALLI, THAMARASSERY, PULLANHIMEDU, KOZHIKODE, PIN-673 573.** **MACA.No.2171/2014** **:2:** **3 THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVI. OFFICER II, SHAFEER COMPLEX, OPP. YMCA, KANNUR ROAD, KOZHIKODE - 673 001.** **R1&2 BY ADV. SRI.SUNNY MATHEW R3 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-07-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2171/2014** **:3:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 29[th] day of July, 2020**_ The petitioner in OP(MV) No.756/2010 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 26.07.2011. 2. The appellant in his OP(MV) stated that he was travelling in a bus bearing No.KL-11L-1071 on 31.12.2009 from Eangapuzha to Kodanchery. The bus was driven in a rash and negligent manner with over speed. When it reached Mar Baselious English Medium School, the bus was capsised. The appellant sustained serious injuries and was treated at Medical College Hospital, Kozhikode. The accident occurred solely due to the rash and negligent driving of the 2[nd] respondent-driver. The appellant claimed ₹7 lakhs as **MACA.No.2171/2014** **:4:** compensation from respondents 1 to 3, who are the RC owner, bus driver and the insurer respectively. 3. The 3[rd] respondent-insurer opposed the OP(MV) filing written statement. The insurance coverage on the bus was admitted. The 3[rd] respondent disputed the negligence alleged against the driver. It was further urged that the bus driver had no valid driving licence at the time of the accident and hence the 3[rd] respondent is not liable to pay compensation. 4. The appellant produced Exts.A1 to A10 documents. The 3[rd] respondent produced Ext.B1 copy of Final Report. Ext.C1 Medical Board Report dated 12.05.2011 was marked as Court Exhibit. 5. The Tribunal found that the 2[nd] respondent had no valid driving licence and even without a licence, he was driving the bus in a rash and negligent manner. The Tribunal found that the accident was due to the negligence of the 2[nd] respondent. **MACA.No.2171/2014** **:5:** 6. The Tribunal noted that the appellant had suffered multiple fractures. The appellant was an inpatient from 31.12.2009 and was discharged after surgery on 02.02.2010. The Tribunal noted that the disability is 56% as per Ext.C1 and it will affect appellant's future earning capacity. The Tribunal accordingly awarded an amount of ₹4,57,343/- as compensation under the following heads:- |**Sl.**<br>**No.**|**Heads of claims**|**Amount**<br>**claimed**|**Amount**<br>**allowed**|**Details**| |---|---|---|---|---| |1|Transport to hospital|10,000/-|1,000/-|| |2|Extra Nourishment|5,000/-|1,000/-|| |3|Damage to clothing|2,000/-|500/-|| |4|Loss of earning|50,000/-|10,500/-|3500 x 3 months| |5|Treatment expenses|70,000/-|15,553/-|Entire bills amount| |6|Bystanders expenses|Nil|4,950/-|150 x 33 days| |7|Pain and sufferings|40,000/-|18,000/-|| |8|Continuing Permanent<br>disability|7,50,000/-|3,99,840/-|3,500 x 12 x 56 x17/100| |9|Loss of amenities of life|10,000/-|6,000/-|| |||**Total**|**4,57,343/-**|| Interest at the rate of 7% per annum from 12.05.2010 was also allowed to be realised. The Tribunal also ordered that since there is violation of policy condition, the 3[rd] respondent **MACA.No.2171/2014** **:6:** may pay the compensation amount and recover the same from RC owner of the vehicle. 7. Learned counsel for the appellant argued that though the appellant claimed a monthly income of ₹9,000/-, he being a professional Driver, the Tribunal fixed his income as ₹3,500/- which is on a lower side. The Tribunal did not grant sufficient compensation towards extra nourishment, loss of earnings, etc. The amount of ₹6,000/- granted by the Tribunal towards loss of amenities of life is on a lower side. The compensation amount is therefore liable to be enhanced. 8. The learned Standing Counsel for the 3[rd] respondent argued that the appellant did not produce any document to establish his monthly income. Therefore, the Tribunal was justified in assuming a reasonable monthly income of ₹3,500/-. The Tribunal has liberally granted compensation under various heads and the same need no revision. As the Tribunal found that the driver has no valid licence, the insurer is not liable to compensate. Therefore, **MACA.No.2171/2014** **:7:** the liberty of pay and recovery ordered by the Tribunal is to be retained. 9. I have heard the learned counsel for the appellant, learned counsel appearing for the 2[nd] respondent and the learned Standing Counsel appearing for the 3[rd] respondent. 10. The Tribunal has awarded ₹1,000/- as compensation towards transportation expenses which is a just compensation. The Tribunal has awarded only ₹1,000/towards compensation for extra nourishment. As the appellant was an inpatient for 33 days, the amount of ₹1,000/awarded by the Tribunal is liable to be enhanced. Accordingly, it is held that the appellant will be entitled to an additional compensation of **₹3,950/-** [(₹150 x 33) - ₹1,000 already awarded by the Tribunal] towards extra nourishment. The appellant should be made eligible for enhancement in compensation towards damage to clothing also, since the Tribunal has awarded only ₹500/-. The appellant therefore will be entitled to an additional compensation of **₹500/-** **MACA.No.2171/2014** **:8:** towards damage to clothing. 11. As regards compensation for loss of earnings, the Tribunal has fixed the notional income of the appellant at ₹3,500/-. The appellant claimed that he is a Driver by profession. Going by the criteria laid down in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ , the appellant being selfemployed without any proof of his income, the appellant's monthly income is to be taken as ₹7,000/-. Consequentially, the appellant will be entitled to an additional compensation of **₹10,500/-** [(₹7,000 x 3) - ₹10,500 already awarded by the Tribunal] towards loss of earnings. 12. The Tribunal has granted ₹15,553/- towards treatment expenses. As the Tribunal has awarded compensation for the entire medical expenses for which proof was produced, the said amount need no revision. Towards bystander expenses, the Tribunal has awarded ₹4,950/-. As the accident occurred in the year 2009, the appellant should **MACA.No.2171/2014** **:9:** be made eligible for bystander expenses at the rate of ₹200/for the 33 days period as inpatient. The appellant should therefore be eligible to ₹6,600/- under this head and after deducting ₹4,950/- already awarded by the Tribunal, the appellant will be held entitled to **₹1,650/-** towards additional compensation for bystander expenses. 13. The Tribunal has awarded only ₹18,000/- towards pain and sufferings. Ext.A9 Medical Report would show the following fractures:- - 1 Show comminuted fracture of the lower part of right iliac bone and roof of right acetabulam with multiple upward, anteriorly and medially displaced acetabular bone fragments - 2 Minimal upward subluxation of the right femoral head splaying the fractured bones of the roof of acetabulam. - 3 Fracture of the left iliac bone with mild postero-lateral displacement of the left iliac bone and minimal widening of the left sacroiliac joint. - 4 Fracture of the roof of left acetabulam. No dislocation or subluxation of left hip joint. - 5 Fracture of the left superior and inferior ischiopubic rami associated with mild displacement and minimal subluxation of pubic symphysis. - 6 The proximal ends of femurs show no fracture. **MACA.No.2171/2014** **:10:** - 7 Low density areas, probably blood is noted in the right iliacus and left gluteus muscles extending to the lower antero left lateral pelvic wall. - 8 Foley's catheter is visible in the contracted urinary bladder. The appellant had to undergo multiple surgeries for the said fractures and injuries. Taking note of the nature and number of fractures and injuries suffered by the appellant, the amount of ₹18,000/- awarded by the Tribunal towards pain and sufferings, is on a lower side. The appellant should therefore be held entitled to ₹30,000/- as total compensation for pain and sufferings. Accordingly, it is held that the appellant will be entitled to an additional compensation of **₹12,000/-** (₹30,000 - ₹18,000 already awarded by the Tribunal) towards pain and sufferings. 14. The Tribunal has awarded ₹3,99,840/- as disability compensation. For arriving at this figure, the Tribunal took ₹3,500/- as the notional monthly income of the appellant. It is already held that the appellant should be treated as having a monthly income of ₹7,000/- in the year 2009. 15. Ext.C1 Medical Board Report would show that the **MACA.No.2171/2014** **:11:** appellant has 50% loss of movements of hip joint (R). The Medical Board has also reported that the appellant had partial loss of all functions of right hip except standing on both legs and therefore assessed functional disability of 40% there. The Medical Board also found that the appellant has suffered compression fracture L1 vertebra resulting in disability of 15%. The total disability was therefore assessed at 56%. It is to be noted that such amount of disability would seriously affect the ability of the appellant to work as a Driver or to engage in any other avocation where physical efficiency is important. The appellant should therefore be held entitled to count future prospects also for the purpose of calculating compensation for disability. Consequently, the appellant is held entitled to a total amount of ₹11,19,552/- [(₹7,000 + ₹2,800) x 12 x 56 x 17/100] towards compensation for disability. Accordingly, it is held that the appellant will be entitled to an additional compensation of **₹7,19,712/-** (₹11,19,552 - ₹3,99,840 already awarded by the Tribunal) towards disability. **MACA.No.2171/2014** **:12:** 16. The Tribunal has granted compensation for loss of amenities, ₹6,000/-. As the appellant has suffered substantial injuries resulting in requirement of multiple surgeries, it would be only just and proper to enhance the compensation for loss of amenities to ₹10,000/-. Accordingly, the appellant is held entitled to an additional compensation of **₹4,000/-** towards loss of amenities. 17. Consequently, the appellant will be entitled to a total additional compensation of **₹7,52,312/-** under the following heads:- |(i)|Additional compensation towards extra|₹3,950/-| |---|---|---| ||nourishment|| |(ii)|Additional compensation towards damage to|₹500/-| ||clothing|| |(iii)|Additional compensation towards loss of|₹10,500/-| ||earnings|| |(iv)|Additional compensation towards bystander|₹1,650/-| ||expenses|| |(v)|Additional compensation towards pain and|₹12,000/-| ||sufferings|| |(vi)|Additional compensation towards disability|₹7,19,712/-| **MACA.No.2171/2014** **:13:** (vii) Additional compensation towards loss of ₹4,000/amenities ## **Total** **₹7,52,312/========** The appellant is entitled to interest at the rate of 7% per annum on the said additional compensation also with effect from the date of the OP(MV), but excluding a period of 1014 days covered by the delay, as ordered by this Court on 05.04.2016. 18. At the time of hearing, the 2[nd] respondent filed an IA and produced Annexure-A1 driving licence issued to him by the Assistant Licensing Authority, Koduvally. If the 2[nd] respondent was holding a valid driving licence at the time of the accident, then it will be unjust to permit the insurer to recover the compensation amount from the 2[nd] respondent. The learned Standing Counsel for the insurer argued that this document being produced for the first time in the appellate proceedings, the insurer should be given an opportunity to **MACA.No.2171/2014** **:14:** question the veracity of the document. The request made by the Standing Counsel for the 3[rd] respondent-insurer is just and reasonable. In the circumstances, the OP(MV) is remanded back to the Tribunal for the limited purpose of deciding the veracity of Annexure-A1 driving licence and to decide whether the insurer is liable to pay the compensation, without resorting to recovery from the 2[nd] respondent. Sd/- **N. NAGARESH, JUDGE** aks/27/07/2020 **MACA.No.2171/2014** **:15:** ## **APPENDIX** ## **APPELLANT'S EXHIBITS:** **ANNEXURE-A1 MEMO DATED 27.05.2014 ISSUED BY ADV.RASHMI K.V. TO SRI.SANTHOSH KUMAR K.P., ADVOCATE CLERK.** **ANNEXURE-A2 REPLY ISSUED BY SRI.SANTHOSH KUMAR K.P. ADVOCATE CLERK DATED 30.05.2014 ANNEXURE-A3 LETTER ISSUED TO SRI.SANTHOSH KUMAR K.P.,ADVOCATE CLERK BY ADV.RASHMI.K.V. DATED 02.06.2014.** **ANNEXURE-A4 MEMO ISSUED BY ADV.ANIL THOMAS TO SRI.SANTOSH KUMAR K.P.,ADVOCATE CLERK DATED 03.06.2014.** **ANNEXURE-A5 LETTER ISSUED BY ADV.ANIL THOMAS TO THE REGISTRAR HIGH COURT OF KERALA DATED 04.06.2014.** **ANNEXURE-A6 AFFIDAVIT OF THE LAWYER AT TRIBUNAL** **ANNEXURE-A1** **ORIGINAL DRIVING LICENSE ISSUED BY THE ASSISTANT LICENSING AUTHORITY, KODUVALLY, No.11/799/1988.**