Shefin v. Joby George and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** **MACA NO. 371 OF 2013** **THE AWARD OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA, IN OP(MV) 39/2006 DATED 13.12.2011** ## **APPELLANT/PETITIONER:** SHEFIN, S/O SHAMSUDHEEN, AGED 24 YEARS, MOUNSPURATHIL HOUSE, POTTEKKAD P.O., ERUPATH ACRE, IDUKKI DISTRICT. BY ADVS. SRI.PHILIP T.VARGHESE SRI.ALEX M.THOMBRA SMT.ACHU SUBHA ABRAHAM SMT.T.M.BINITHA SRI.THOMAS T.VARGHESE ## **RESPONDENTS/RESPONDENTS:** 1 JOBY GEORGE, S/O.VARGHESE, AGED 36 YEARS, THADATHIL HOUSE, KUTTAMUZHA VILLAGE, INCHATHOTTY KARA, KOTHAMANGALAM TALUK 686 681 2 SHINTO, S/O.THOMAS, AGED 34 YEARS, KUNNAPILLIKKATTU HOUSE PRAKASH P.O., 17TH COLONY, IDUKKI 685 609. 3 P.D.JAYAN, S/O.DIVAKARAN, AGED 47 YEARS, PURATHOOTTU HOUSE KANJIRAVELI KARA, MANNAMKANDOM VILLAGE, DEVIKULAM TALUK,IDUKKI DISTRICT 685 561. 4 THE MANAGER, THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE, P.B.NO.8, JYOTHI SUPER BAZAR, THODUPUZHA 685 584. BY ADVS. SRI.P.K.VARGHESE SMT.A.SREEKALA SMT.SANJANA RACHEL JOSE ADV.SMT. A.SREEKALA-R4 ADV.P.K.VARGHESE -R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.371 of 2013 2 ## **JUDGMENT** The appellant is the claimant in O.P.(M.V) No.39/2006 on the file of Principal Motor Accidents Claims Tribunal, Muvattupuzha. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation for the injury sustained by the appellant/claimant (hereinafter be referred as the claimant). The claimant is a minor. 2. It is alleged that the accident occurred on 21.9.2005 at about 11.30 a.m., while the claimant was riding a motor cycle bearing registration No.TN-60A-1499, a bus bearing Reg.No.KL-6C788 driven by the 1[st] respondent came from opposite direction hit the motorcycle, as a result the claimant sustained grievous injuries. The accident happened due to the rash and negligent driving of the 1[st] respondent. 2[nd] respondent is the registered owner of the offending vehicle. 3[rd] respondent is the defacto owner. 4[th] respondent is the insurer of the offending vehicle. The claim is for a total amount of Rs.4,27,500/-. MACA.No.371 of 2013 3 3. Before the Tribunal, respondents 1 to 3 remained exparte. 4[th] respondent filed written statement admitting the policy coverage with respect to the offending vehicle. It is also contended that the accident occurred due to the rash and negligent riding of the motorcycle by the claimant, who was a minor and not holding valid driving license at the time of accident. It is also contended that 2[nd] respondent, the owner of the offending vehicle transferred the vehicle to the 3[rd] respondent without making any application for transferring the insurance policy in the name of 3[rd] respondent. There was no privity of contract between the 4[th] respondent and 3[rd] respondent and hence, the liability is also denied. 4. This case has been tried along with O.P.(MV) No.40/2006. PW1 examined and Exhibits A1 to A10, A11 to A15 and B1 were marked from the side of the claimant. Tribunal on evaluating the pleadings as well as the materials produced, came to a conclusion that the claimant was riding the motorcycle without license and hence, 7.5 % contributory negligence was found and that amount was deducted from the total compensation awarded. MACA.No.371 of 2013 4 ## 5. The compensation awarded by the Tribunal under various ## heads are as follows: |Compensation allowed at<br>different heads|Amount claimed<br>(Rs.)|Amount<br>awarded by the<br>Tribunal<br>Rs.| |---|---|---| |General expenses:<br>Transportation, extra<br>nourishment, damage to<br>cloth etc. (bills for taxi not<br>proved)|57,000|12,500| |Medical expenses|1,50,000|94,582| |Pain and suffering|70,000|20,000| |Loss of amenities|50,000|18,000| |Compensation for loss of<br>earning due to permanent<br>disability<br>(3,000x5x16/100)|1,00,000|28,800| |Total|4,27,500|1,73,882| Total compensation of Rs.1,73,882/- was assessed and deducting 7.5% an amount of Rs.1,60,841, which was rounded to Rs.160,850/- was awarded. MACA.No.371 of 2013 5 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. Vakalath has filed on behalf of the 2[nd] respondent. Service is complete as against 1[st] and 3[rd] respondents, there was no appearance. 4[th] respondent appeared through Standing Counsel Adv.A.Sreekala. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 4[th] respondent, Insurance Company. Lower court records were called for and perused. 8. According to the learned counsel for the claimant, the police charge was laid against the 1[st] respondent, the driver of the bus. No evidence was adduced from the side of the respondents to controvert the police charge. But Tribunal arbitrarily fixed 7.5% contributory negligence against the claimant, and it is illegal. It is also contended that the permanent disability of 8% has been assessed by the Doctor. The Doctor was examined as PW1. But the Tribunal adopted 5% disability only. 8(a). Tribunal found 7.5% contributory negligence on the MACA.No.371 of 2013 6 part of the claimant for the sole reason that he was not holding driving licence. There is no finding that the absence of driving licence or act of the claimant has contributed to the accident. 9. In **Mohammed Noufal T. v. Saheed and others 2018 (1) KHC 507** a Division Bench of this Court has held that mere absence of driving licence to the claimant is not a factor to be taken into consideration to hold that claimant has contributed to the accident. 10. In **Oriental Insurance Co. Ltd. v. Jayan 2012 KHC 656: 2012 (3) KLT SN 115 (C.No.118)** a learned Single Judge has held that mere absence of driving licence by the person who drove the vehicle at the time of accident is not enough and the insurance company has to prove that owner of the vehicle allowed consciously to drive the vehicle by the person who is not holding licence. No evidence was adduced from the side of the respondent to prove that the act of the claimant or absence of driving licence to him has contributed to the accident or that the insured consciously allowed the claimant to drive the vehicle. So finding of 7.5% contributory negligence on the part of claimant by the Tribunal is MACA.No.371 of 2013 7 illegal and unsustainable and hence is hereby set aside. 11. 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. 12. In personal injury cases, heads under which the MACA.No.371 of 2013 8 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 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. 13. 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). MACA.No.371 of 2013 9 14. 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. 15. In the present case, the claimant produced Exhibit A4 wound certificate issued form Morning Star Medical Centre, Adimaly. The claimant was admitted on 21.9.2005, with swelling and deformity left thigh, lacerated wounds chin, right leg and abrasion left side of nose and right cheek sustained in an accident. Immediately, he was referred to Medical Centre, Ernakulam, for better treatment. Exhibit A9 is the wound certificate issued from Ernakulam Medical Centre, injuries noted are abrasions and contusions on right cheek, right knee, right leg and left leg. He also sustained head injury (cerebral concussion) and fracture of right maxilla and supracondylar fracture left femur. Initially POP slab was applied to right thigh. Though he was taken for a closed reduction of fracture left femur the same appeared uniting. Hence, POP cast MACA.No.371 of 2013 10 was again applied. Since the wound was got infected later, he was again admitted in the hospital and debridement and open reduction of fracture femur was done and fixed with K Wires. He was discharged on 07.11.2005 with external fixator and K wires with an advise to have a review on 23.11.2005. On 24.11.2005 K wire and external fixator were removed under general anesthesia and physiotherapy started. He was discharged on 02.12.2005. On 31.12.2005 X-ray left knee showed uniting fracture and he was allowed partial weight bearing walk on left leg. On 18.2.2006 X-ray left knee showed united fractures and he was allowed full weight bearing walk. He had undergone inpatient treatment for 46 days. Medical bills for Rs.94,582/- has been produced. 16. The Doctor who issued the disability certificate was examined as PW1. Exhibit A15 disability certificate certifies 8% disability. The Doctor during examination specifically states about the injuries sustained by him and the disability noted in proof affidavit. During cross examination he reiterated that 8% disability assessed would be permanent and that would affect his earning capacity. PW1 also categorically disclose that the patient being a MACA.No.371 of 2013 11 student the difficulties would affect his earning power depending upon the profession to which he may be admitted though, he says while assessing the disability he has not considered the profession of the patient. The victim was only a student and it is not possible for the Doctor to assess the profession. **Raj Kumar** also provides that if at all the Tribunal is not satisfied with the Medical evidence, the tribunal ought to have referred the claimant to a Medical Board. Without doing that, unilaterally reducing the disability to 5% by the Tribunal is illegal. Hence, 8% permanent disability assessed by the Doctor taking into account the injuries sustained by the claimant as well as the prolonged inpatient treatment undergone by him can very well be accepted. So permanent whole body disability is taken as 8% as assessed by the Doctor. 17. So, taking into account the above factors, compensation awarded by the Tribunal is re-fixed as follows: Towards general expenses ie. Transportation, extra nourishment, damages to cloth etc. an amount of Rs.57,000/- was claimed and the Tribunal awarded Rs.12,500/-. In view of the repeated inpatient treatment undergone by the claimant on different occasions an amount of MACA.No.371 of 2013 12 Rs.3,000/- is taken as transportation expenses. He had undergone inpatient treatment for 46 days, the accident was in the year 2005. Rs.200/- per day can be taken towards bystander expenses. Towards bystander expenses the claimant is entitled to get Rs.9,200/- (Rs.200x46). Towards damage to clothing Rs.500/- can be awarded. Being a student towards extra nourishment an amount of Rs.6,000/- is awarded. So,towards special damages he is entitled to get Rs.18,700/-. Deducting the amount already awarded balance would be Rs.6,200/- (Rs.18,700-12,500). Towards pain and suffering the claimant made a claim of Rs.70,000/-. But the Tribunal awarded only Rs.20,000/-. The claimant was a minor boy, aged 17 years at the time of accident. He had undergone treatment for 46 days and undergone different surgeries and prolonged treatment. Hence, towards pain and suffering an amount of Rs.30,000/- can reasonably be granted. Deducting the amount already awarded balance would be Rs.10,000/- (Rs.30,00020,000). Towards loss of amenities Rs.18,000/- has been awarded by the Tribunal. That is seems to be reasonable. 18. Claimant is a student aged 17 years. So, in view of the MACA.No.371 of 2013 13 decision laid down in **National Insurance Co.Ltd. v. Fathima Zuhra @ Zuhra Razak & Another 2016 (3) KLT 459 and Basanti Devi and Another v. The New India Assuarance Co.Ltd. and others (Civil Appeal No.7435-7436 of 2021) the** notional income of the claimant can reasonably be fixed as Rs.3,500/-. So, towards permanent disability the claimant is entitled to get Rs.3,500 x 12 x 18 x 8/100 = Rs.60,480/-. Deducting the amount already awarded, balance would be Rs.31,680/- (Rs.60,480-28,800). The award would also go to show that the Tribunal reduce out of compensation assessed an amount of Rs.13,041/- towards 7.5% contributory negligence. Finding with regard to the contributory negligence has already been set aside. So, that amount has to be added. So, the claimant is entitled to get enhanced compensation of Rs.6,200 + 10,000 + 31,680 + 13,041=Rs.60,921/-. It will be rounded to Rs.61,000/-. 19. In the result, appeal allowed in part by enhancing compensation to an amount of **Rs.61,000/- (Rupees sixty one thousand only)** which will carry interest @ 7.5% per annum from the date of petition ie. 09.1.2006 excluding the period of delay of MACA.No.371 of 2013 14 112 days in filing the appeal. The 4th respondent, Insurance Company, shall satisfy 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. The claimant 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 a copy to the 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