Shamsudheen v. Hamsath, Mani @ Shinesh, Jubairaniyath and The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944 MACA NO. 2394 OF 2013** **IN OPMV 2873/2005 OF SPECIAL COURT FOR EC ACT CASES &** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** **APPELLANT/PETITIONER:** **SHAMSUDHEEN, AGED 48 YEARS, S/O.HASAN, RESIDING AT THONIYARAYIL HOUSE, THRISSUR DISTRICT. BY ADVS.** **SRI.T.C.SURESH MENON SRI.A.R.NIMOD** ## **RESPONDENTS:** - **1 HAMSATH, S/O.ABDUPPA, RESIDING AT 11/72, MOOPADAYIL HOUSE, PUNNANOORKULAM,THRISSUR 679561** - **2 MANI @ SHINESH, S/O VASU, RESIDING AT THARAYIL HOUSE, PUNNANOORKULAM, THRISSUR-679 561.** - **3 JUBAIRIYATH, W/O ABDUL GAFOOR, RESIDING AT 6/322, VATAKEKKARA HOUSE, ANAKKARA, PALAKKAD 679 551.** - **4 THE NEW INDIA ASSURANCE COMPANY LIMITED K.H.BUILDING, THAZHEPALAM, TIRUR-676 101.** **BY ADVS. SRI.A.HAROON RASHEED SRI.P.JAYASANKAR SRI.N.S.NAJEEB SMT.K.M.SAJINA ADV. SRI. N.S NAJEEB - R4** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.2394/2013 ..2.. ## **JUDGMENT** Dated this the 27[th] day of May, 2022 This appeal has been filed against the award passed in O.P(MV) No.2873/2005 on the files of the Motor Accidents Claims Tribunal, Thrissur (In short 'Tribunal'). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (In short 'the Act') for the injury sustained by the appellant in a motor accident occurred on 15.12.2004 due to hit by tempo trax bearing Registration No.KL-11-CE-2421 while he was riding the motor cycle bearing Registration No.KL-8-U1588 through Kombathelpady-Vattampadam public road. It is alleged that the accident occurred due to the rash and negligent driving of the 2[nd] respondent, driver of the tempo trax. The 1[st] respondent is the owner and it is insured with the 4[th] respondent. The policy is in the name of the 3[rd] respondent. A total compensation of Rs.1,60,000/- has been claimed. 2. Before the Tribunal, respondent Nos.1 to 3 remained _ex-parte_ . The 4[th] respondent-insurer filed written MACA. No.2394/2013 **==> picture [22 x 8] intentionally omitted <==** statement admitting the policy coverage with respect to the tempo trax. But it is contended that the 2[nd] respondent is not having a valid license at the time of accident and 1[st] respondent had permitted such an unqualified driver to drive the vehicle and thereby violated the policy conditions. Hence, the 4[th] respondent is not liable to indemify the owner as well as the insured. Rashness and negligence on the part of the driver is also denied. 3. Exts.A1 to A11 marked from the side of the appellant and Ext.B1 copy of the policy marked from the side of the 4[th] respondent. The Tribunal, on evaluating the pleadings as well as the materials produced, found that the 2[nd] respondent is responsible for the accident and being the owner 1[st] respondent is vicariously held liable. The 1[st] respondent and the 4[th] respondent - insurer is directed to pay the amount. It is also found that 2[nd] respondent was not having valid driving license at the time of the accident and hence 4[th] respondent was directed to pay the amount to the appellant and permitted to recover the amount from the 1[st] MACA. No.2394/2013 **==> picture [22 x 8] intentionally omitted <==** respondent/registered owner. Total compensation of Rs.90,900/- was awarded. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant approached this Court in appeal on various grounds stated in the memorandum of appeal. 5. Service is complete against respondent Nos.1 to 3. There was no appearance. Adv.N.S.Najeeb appeared on behalf of the 4[th] respondent. 6. According to the learned counsel for the appellant, the appellant was conducting a grocery shop and claimed a monthly income of Rs.5,000/-. But the Tribunal notionally fixed his income as Rs.3,000/-. It is also contended that the appellant sustained serious injuries and the Doctor certified 10% permanent whole body disability. But the Tribunal taken only 5% disability for computing the compensation towards permanent disability. It is also contended that the amount of compensation awarded under other heads are also very low. Hence he seeks for enhancement of compensation on all other MACA. No.2394/2013 **==> picture [22 x 8] intentionally omitted <==** heads. 7. The learned Standing counsel for the 4[th] respondent- insurer, on the other hand, would contend that just and reasonable compensation has already been awarded by the Tribunal and no interference is required at the instance of this Court. 8. The appellant claimed to be conducting a grocery shop and claimed a monthly income of Rs.5,000/-, but no evidence as such has been adduced to prove his income or occupation as such. However, the accident occurred in the year 2004. As per **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236],** the Apex Court taken the monthly income of a coolie, who met with a motor accident in the year 2004, notionally as Rs.4,500/-. In this case, the appellant was aged 23 years and he is claimed to be a concrete worker and the accident was occurred in the year 2004. Hence, income of the appellant is taken as **Rs.4,500/-** per month. 9. In _**Raj kumar v.Ajay Kumar and Another**_ MACA. No.2394/2013 ..6.. **(2011(1) SCC 343 = 2010 KHC 5021)** , the Apex Court has elaborately discussed the general principle relating to compensation in injury cases. 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). In paragraph No.5, of the heads coming under pecuniary damages and non pecuniary damages have been discussed in detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating to 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. 10. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:- Loss of future earnings MACA. No.2394/2013 **==> picture [22 x 8] intentionally omitted <==** of 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). 11. 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. 12. In the present case, appellant produced Ext.A5 discharge card issued from Royal Hospital, Kunnamkulam proving his inpatient treatment from 15.12.2004 to 19.12.2004 initially and injuries diagnosed is Posterior dislocation (L) hip, cut ligamenta patella and severe contamination. Discharge card from the same hospital proving admission from 24.01.2005 to 29.01.2005 also has been produced in which diagnosis shown as old ligamenta patella injury with stiffness (L) knee. Treatment given is closed manipulative reduction of hip, wound debridement, tendon MACA. No.2394/2013 ..8.. repair & S.S fixation, cylindrical cast and fraction etc. 13. Ext.A8 is the disability certificate issued by the Assistant Professor of orthopedics, Government Medical College, Thrissur and the doctor noted the following problems, and the doctor assessed permanent disability at 10% whole body. The Tribunal was not pleased to accept the disability certificate _in toto_ and taken only 5% disability for computing the compensation under the head of disability. The learned counsel for the appellant would contend that in view of the dislocation of hip and injury sustained to patella, the 10% disability assessed by the doctor ought to have been accepted _in toto_ by the Tribunal. However, the inpatient treatment undergone by the appellant is only 9 days. Taking into account the disability noted in Ext.A8 as well as the fact that the injury sustained is dislocation of hip as well as compound avension of cut ligamentation patella, I am of the considered view that permanent disability suffered by the appellant can be taken as 8% whole body disability. Compensation to be awarded to the appellant can be re-fixed as follows: MACA. No.2394/2013 ..9.. 14. The Tribunal already taken loss of earning for four months, taking into account the nature of injuries and the period of treatment undergone by him, that can be maintained and can be re-fixed as 4,500x4=18,000/-. Deducting the amount already awarded by the Tribunal, the balance would be Rs.6,000/-(18,000-12,000). Towards bystander expenses Tribunal awarded Rs.1,000/-. Since the accident is in the year 2004, Rs.150/- per day can be awarded towards bystander expense. So towards bystander expenses, appellant is entitled to get Rs.1,350/-(150x9). Deducting the amount already awarded by the Tribunal, the balance would be Rs.350/(1,350-1,000). Towards extra nourishment, no amount is seen awarded by the Tribunal. The appellant had undergone inpatient treatment for 9 days. Towards extra nourishment an amount of Rs.900/- can be awarded. No amount is seen awarded towards damage to clothing. So an amount of Rs.5,00/- is awarded towards damage to clothing. In view of the nature of injuries and the period of treatment undergone by the appellant Rs.20,000/- claimed by the appellant towards MACA. No.2394/2013 **==> picture [28 x 8] intentionally omitted <==** pain and suffering seems to be reasonable. Deducting the amount already awarded by the Tribunal, the balance would be Rs.5,000/- (20,000-15,000). 15. Appellant is found to be 40 years old, his driving licence is also produced it would also prove that his date of birth is 12[th] November, 1964. As on the date of accident he has not completed 41 and he can be taken as 40 years of old as on the date of accident. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '15'. So, towards permanent disability, appellant is entitled to get 4,500x12x15x8/100= 64,800/-. Deducting the amount already awarded, the balance would be **Rs.39,600/-** (64,80025,200). In total appellant is entitled to get enhanced compensation of **Rs.52,350** (6,000+350+ 900+500+5,000 + 39,600). 16. The learned counsel for the 4th respondent would MACA. No.2394/2013 ..11.. contend that the Tribunal ordered pay and recovery and that has to be maintained. It has been found by the Tribunal that steps has been taken by the insurer to call for the driving licence and I.A 8357/2010 is also seem to have been filed by the 4th respondent for directing the 2nd respondent to produce the driving licence and in the award it has been found that the driving licence produced was not valid and hence there is violation of policy conditions by the 1st respondent. The 1St and the 3rd respondents remained as _ex-parte_ also. The 4th respondent has made a specific contention that 1st respondent permitted the 2nd respondent an unqualified driver to drive the vehicle and thereby violated the policy conditions. So pay and recovery ordered by the Tribunal is legal and proper and it is hereby maintained (See **Parminder Singh V. New India Assurance Co Ltd & Others** [AIR 2019 SC 3128] and **Oriental Insurance Co Ltd V.Poulose** [2015(1) KLT 682]). In the result, appeal stands allowed enhancing the compensation to **Rs.52,350/-** with interest of 6.5% from the date of petition, excluding the period of delay of 188 days in MACA. No.2394/2013 ..12.. filing the appeal. Appellant 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. Sd/- **M.R.ANITHA, JUDGE** ded/27.05.2022