SHEFEEK, S/O MUHAMMED v. BITTO ABRAHAM and NATIONAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943** ## **MACA NO. 538 OF 2013** **AGAINST THE AWARD DATED 23.07.2012 IN OPMV 503/2007 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** **SHEFEEK, S/O MUHAMMED, AGED 19 YEARS, CHITTETHUKUDY HOUSE, AYROORPADAM PO, PINDIMANA, KOTHAMANGALAM. BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI** ## **RESPONDENTS/RESPONDENTS 1 AND 2:** **1 BITTO ABRAHAM, MANGALATHU HOUSE, KOTTAPPADY, KOTHAMANGALAM, PIN-686 692.(1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 10.07.2017 IN I.A.NO.4451/2016)** **2 NEW INDIA INSURANCE COMPANY LTD., (CORRECTED) PERUMBAVOOR, PIN-683 542.** **BY ADV LAL GEORGE-R2** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** The name of the second respondent in the cause title of the judgment dated 10.03.2022 in M.A.C.A.No.538/2013 is corrected as “National Insurance Co. Ltd” instead of “New India Insurance Company Ltd” as per order dated 06.07.2022 in I.A.No.1/2022 in M.A.C.A.No.538/2013. **Sd/-** ## **Deputy Registrar** M.A.C.A No. 538 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.503/2007 on the file of Motor Accidents Claims Tribunal, Muvattupuzha. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant/claimant in a motor accident occurred on 25.10.2006 at about 3.00 a.m., while he was travelling in a Tata Sumo motor cab bearing Registration No. KL-7AE-8074 ridden by the 1[st] respondent from Mysore to Ayroorpadam, due to hit against a granite foundation on which the KSEB Transformer was installed. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent, the driver of the Tata Sumo motor cab. The 1[st] respondent is the owner cum driver of the offending vehicle. 2[nd] respondent is the insurer of the offending vehicle. Total compensation of Rs.4,95,000/- has been claimed which was limited to Rs.4,50,000/-. 2. Before the Tribunal, 1[st] respondent the owner cum driver of the offending vehicle remained ex parte and the 2[nd] respondent insurer filed written statement admitting the insurance coverage with respect to the offending vehicle. The rashness and negligence on the part of the 1[st] M.A.C.A No. 538 of 2013 **3** respondent is denied. The claimant was put to strict proof regarding the age, income and occupation. It is contended that the compensation claimed under various heads are excessive. 3. PW1 was examined and Exts. A1 to A21 were marked from the side of the appellant. This case was tried along with the O.P.M.V No.365/2007 and a common award was passed. Total compensation of Rs.1,70,825/- was awarded. Appellant/claimant filed I.A.No.2/2021 to accept additional documents that is SSLC certificate issued from the General Educational Department which is marked as Ext.A23. Heard the learned counsel for the appellant and the learned Standing Counsel for the 2[nd] respondent. 1[St] respondent is deleted from the party array at the risk of the appellant. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant approaches this Court in appeal for the various grounds stated in the memorandum of appeal. 5. According to the learned counsel for the appellant, claimant was Electrician-cum-Plumber earning Rs.3,500/- per month but the Tribunal fixed his monthly income as Rs.3,000/- which is very low. It is contended that the appellant/claimant sustained serious injuries and he had undergone inpatient treatment for a period of 56 days in various M.A.C.A No. 538 of 2013 **4** hospital and the amount awarded is very low in view of the grievous nature of injuries sustained by the claimant. Hence he seeks for enhancement of compensation on all heads. 6. The learned Standing Counsel for the 2[nd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 7. With regard to the income, eventhough claimant was alleged to be an Electrician-cum-plumber, no evidence was adduced to substantiate it. However, taking into account the fact that accident was in the year 2005 and he was 17 years old at the time of accident, the income of the claimant can be taken as Rs.3,500/- per month. 8. In _**Raj kumar v. Ajay Kumar and Another**_ (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, the heads coming under pecuniary damages and non pecuniary damages have been discussed in detail. In personal injury cases, compensation would M.A.C.A No. 538 of 2013 **5** 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. 9. 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 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). 10. 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. 11. The learned counsel for the appellant/claimant brought my M.A.C.A No. 538 of 2013 **6** attention to Exts.A11, A14 and A15 as well as A18 to substantiate the allegation regarding the treatment undergone by him in various hospitals. It is also contended that head injuries sustained by the claimant was not noted by the Tribunal while describing the injuries. Ext.A11 wound certificate issued from Medical College Hospital, Kozhikode would go to show that he sustained swelling right ankle and head injury bimalleolar fracture of right lower limb. Ext.A15 is the treatment certificate issued from St. Joseph's Hospital, Kothamangalam proving that he was admitted from 02.12.2006 to 04.12.2006. Ext.A16 is Discharge Summary issued from M.O.S.C Medical College Hospital, Kolenchery which would prove that he had undergone inpatient treatment from 05.12.2006 to 13.12.2006. Ext.A17 is another Discharge Summary issued from M.O.S.C Medical College Hospital, Kolenchery to prove that he had undergone inpatient treatment from 03.01.2007 to 23.01.2007. Clinical features are noted as dislocation of right ankle and head injuries. Ext.A18 is the treatment certificate issued from Chazhikattu Hospital, Thodupuzha certifying that the claimant had underwent surgery on 07.08.2009 (arthodesis under spinal anaesthesia) and discharged on 21.08.2009. On 02.10.2009, removal of plaster done, x-ray showed uniting fracture, below knee walking cast given and M.A.C.A No. 538 of 2013 **7** advised partial weight bearing with support of bilateral axillary crutches. On 03.11.2009, removal of plaster done, x-ray showed united fracture, crepe bandage given and advised 25% weight bearing with support of crutches. Ext.A14 is the certificate issued from Dr.Jacob, Alappat which would show that he had undergone treatment on 08.03.2008 for the injuries sustained in connection with the accident. Ext.A19 is the disability certificate issued by PW1 consultant Orthopaedic surgeon and retired Deputy Director KHS certifying 17% whole body disability. The Tribunal though accepted Ext.A19 certificate for the reason that there is no date to assess the economic loss, Tribunal taken 11% of disability towards economic loss. 12. Ext.C1 disability certificate issued from Medical College Hospital, Calicut certifying 70% permanent disability. The medical examination was done on 11.05.2016 and a diagnosis of “post head injury sequel as dysesthesia and right sided hemiplegia” and also noted that not likely to improve. Ext.A19 certificate issued by Dr.M.S.Bosalai, Consultant Orthopedic Surgeon in which only orthopedic disability has been assessed. Medical Board assessed disability with respect to the head injury. Ext.A19 also certifies 17% permanent whole body disability. Taking into account the totality of the facts and circumstance, I find it just and proper to accept 70% permanent disability certified by the Medical Board. M.A.C.A No. 538 of 2013 **8** 13. It has come out that 56 days inpatient treatment had been undergone by the claimant. Medical records produced from the side of the claimant further go to show that he had undergone treatment in the years 2009 and 2008. Taking into account all those facts and circumstances, loss of earnings for 4 months taken by the Tribunal is not seems to be reasonable. Hence I am inclined to grant six months loss of earnings to the claimant. Hence under the head of loss of earning, the claimant is entitled to get Rs.21,000/-. (Rs.3,500 x 6). Deducting the amount already awarded, the balance would be **Rs.9,000/-** (21,00012,000). 14. The learned counsel further contended that a total amount of Rs.10,000/- was granted towards transportation, damage to clothing, extra nourishment and bystander expenses which is very low. It has come out that he had undergone 56 days inpatient treatment and records also would go to show that he had been to various hospitals more than on five occasions. Hence Rs.5,000/- can be granted towards transportation charges. Towards damage to clothing, Rs.500/- can be awarded since the accident was in the year 2006. Towards extra nourishment, an amount of Rs.6,000/- is awarded taking into account M.A.C.A No. 538 of 2013 **9** the age of the claimant as well as the injuries sustained by him. Towards by stander expenses, claimant is entitled to get Rs.200/- per day since the accident was in the year 2006. On that head, claimant would be entitled to get Rs.11,200/-(200x56). In total, in the above heads, claimant is entitled to get Rs.22,700/-. Deducing the amount already awarded, the balance would be **Rs.12,700/- (** 22,700-10,000). 15. Next aspect is with regard to the permanent disability and compensation to be awarded under that head. 16. Since the permanent disability sustained by the claimant has already been found to be 70%, claimant is entitled for future prospects. (See Jagdish v. Mohan and Others 2018 4 SCC 571 ; Erudhaya Priya v. State Express Transport Corporation Ltd. 2020 ACJ 2159; Pappu Deo Yadav v. Naresh Kumar & Others AIR 2020 SC 4424). Hence the injured was 17 years old at the time of accident, an addition of 40% can be made towards future prospects. Monthly income of the claimant already fixed as Rs.3,500. Giving an addition of 40% towards future prospects, total monthly earning would be 3,500+1,400(40% of 3,500)=4,900. Then annual income of the deceased would be Rs.58,800/- (4,900x12). Claimant was 17 years old at the time of accident. Suitable multiplier to be adopted as per Sarla Verma(smt) v. M.A.C.A No. 538 of 2013 **10** 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) is '18'. So, towards permanent disability, the claimant is entitled to get 4900x12x18x70/100=Rs.7,40,880 **/-.** Deducting the amount already awarded, the balance would be **Rs.6,77,520/-** (7,40,880-63,360). 17. Next contention of the learned counsel for the appellant is with regard to the compensation awarded towards pain and suffering as Rs.15,000/- and Rs.12,000/- towards loss of amenities. Taking into account the prolonged treatment and various procedures of treatment undergone by the claimant, I find it just and proper to award Rs.40,000/towards pain and suffering. Deducting the amount already awarded, the balance would be **Rs.25,000/-** (40,000-15,000). Towards loss of amenities, in view of the injuries and consequent disability sustained by the claimant, Rs.25,000/- can be awarded. Deducting the amount already awarded, the balance would be **Rs.13,000/-** (25,000-12,000). Hence, the claimant is entitled to get enhanced compensation of Rs.7,37,220/- (Seven lakhs thirty seven thousand two hundred and twenty only) (6,77,520+9,000+12,700+25,000+13,000) rounded off to **Rs.7,37,250/-** . M.A.C.A No. 538 of 2013 **11** 18. In the result, claimant is allowed to realize an enhanced compensation of **Rs.7,37,250/-** (Seven lakh thirty seven thousand two hundred and fifty only) in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.2 is directed to pay the enhanced compensation granted in this appeal, together with interest, deducting the liability of appellant/claimant towards balance court fee within a period of two months from the date of receipt of certified copy of this judgment. 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 IFSC Code of the branch) before the Tribunal with copy to the Standing Counsel for insurer 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** rps/ M.A.C.A No. 538 of 2013 **12** ## **APPENDIX OF MACA NO.538/2013** **PETITIONER'S EXHIBIT EXHIBIT A22 DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD. EXHIBIT A23 SSLC CERTIFICATE OF THE APPELLANT/CLAIMANT.**