Shibu Khan Puthenveettil v. Anulal; Binesh C S; Oriental Insurance Co Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 18[TH] DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943** **MACA NO. 1809 OF 2013** **(AGAINST THE AWARD DATED 21.5.2013 IN OPMV 376/2004 ONTHE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA)** ## **APPELLANT/PETITIONER:** SHIBU KHAN PUTHENVEETTIL HOUSE,VYATTUPUZHA P O, CHITTAR-SEETHATHODU VILLAGE, RANNY TALUK BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI SRI.SABU I.KOSHY ## **RESPONDENTS/RESPONDENTS 1 TO 3:** 1 ANULAL S/O.SUBRAHMANIYAN,ANU BHAVAN, AVAREESWARAM, NEDUVANOOR MURI, PIDAVOOR VILLAGE, PATHANAMTHITTA TALUK, PIN-689695 2 BINESH C S, BINU BHAVAN, ARAMPUNNA,ELAMPAL P O, PUNALUR, PIN-691322 3 THE BRANCH MANAGER ORIENTAL INSURANCE CO LTD, BRANCH OFFICE, PULIMOOTTIL BUILDING, P B NO 17, POST OFFICE JUNCTION, P UNALUR, PIN-691305 BY ADV SRI.TITUS MANI - R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1809 of 2013 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.376/2004 on the file of Motor Accidents Claims Tribunal, Pathanamthitta. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant in a motor accident occurred on 25.5.2003, while the claimant was travelling as a pillion rider on the motorcycle ridden by the 1[st] respondent. It is alleged that the vehicle capsized at Chittar, resulting in grievous injuries to him. He was taken to Menathottam Hospital, Ranny. 2[nd] respondent is the owner of the vehicle and 3[rd] respondent is the insurer. Total compensation of Rs.3,80500/- has been claimed which is limited to Rs.1,30,250/-. 2. Before the Tribunal, 2[nd] respondent remained ex-parte. O.P.(M.V) has been dismissed as against the first respondent for want of taking steps. 3. The 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to motorcycle bearing registration No.KL 2P 8474. It is contended that there is violation of policy conditions, since the 1[st] respondent was not having valid MACA.No.1809 of 2013 3 ## driving license at the time of accident. 4. There was no oral evidence from either side. Exhibits A1 to A7 were marked from the side of the claimant. Tribunal on evaluating the pleadings and other materials awarded compensation of Rs.20,950/- in total with a direction of pay and recover since there was violation of policy conditions and 1[st] respondent was not having valid driving license at the time of accident. The case was registered against the 1[st] respondent under Sections 279, 337, 338 of IPC and Section 3(1) r/w 181 of the Act. 5. The compensation awarded by the Tribunal under various heads are as follows: **==> picture [320 x 281] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>Loss of earning 9,000-00<br>500-00<br>Transport to hospital<br>Extra diet and nourishment 750-00<br>Damage to clothing 500-00<br>Medical expenses 500-00<br>Bystanders expenses 700-00<br>**----- End of picture text -----**<br> MACA.No.1809 of 2013 4 **==> picture [320 x 217] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>Pain and sufferings 6,000-00<br>Permanent disability<br>Loss of future earning power<br>Loss of amenities of life 3,000-00<br>Total 20,950-00<br>**----- End of picture text -----**<br> 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. Notice was duly served upon respondents 1 and 2. But there was no appearance on behalf of them. 3[rd] respondent appeared through Standing Counsel Adv.Titus Mani. Lower court records were called for and perused. Both sides were heard. 8. According to the learned counsel, the appellant/claimant (herein after be referred as claimant) was 61 years old at the time of accident and he was a coolie and was having a monthly income of Rs.6,000/-. But, the Tribunal notionally fixed his income as Rs.3,000/- per month, which is very low. 9. The learned counsel also would contend that Exhibit A7 MACA.No.1809 of 2013 5 disability certificate certified disability at 9%, which was not accepted by the Tribunal and that caused great prejudice to the appellant. He would further contend that petition was filed before this Court as I.A. No.1/2021 for referring the claimant to Medical Board that was dismissed by this Court as per order dated 10.1.2022. According to the learned counsel at that time this Court assured that disability certificate will be taken into account. However, the order passed would go to show that since the accident occurred on 25.5.2003 and there is already a disability certificate, the court is not inclined to refer the claimant to the Medical Board after 18 years. It was without prejudice to the right of the claimant to press in service Exhibit A7 disability certificate at the time of hearing. It is also contended that the amount awarded towards pain and suffering, loss of amenities etc. are very low. The learned counsel prays for enhancement on all the heads. 10. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has been awarded by the Tribunal and no interference is called for at the instance of this Court. 11. The first aspect is with regard to the income of the claimant. Admittedly, no evidence either oral or documentary has MACA.No.1809 of 2013 6 been adduced to prove the actual income of the claimant. But according to the claimant he is a coolie. It is relevant in this context to quote **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , wherein the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if the claim made is so exorbitant or if the claim made is contrary to ground realities the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. ## 12. In **Syed Sadiq v. Divisional manager, United India** **Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-082008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arouse about his MACA.No.1809 of 2013 7 monthly income. Following the principles in Ramchandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 13. In the present case since the claimant is a coolie aged 25 years, and the accident was in the year 2003, in view of the settled position of law his monthly income can notionally be fixed as Rs.4,000/- instead of Rs.3,000/- taken by the Tribunal. 14. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** 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 MACA.No.1809 of 2013 8 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. 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 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 MACA.No.1809 of 2013 9 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). 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. The claimant in this case sustained following injuries:(1) Multiple abrasions on the body. (2) Swelling left knee joint. (3) Haemarthrosis. It is also stated that X-ray left knee showed Comminuted fracture left patella. He had undergone treatment from 26.5.2003 to 02.6.2003 ie. For 7 days. Exhibit A7 disability certificate certifies 9% permanent disability. With regard to the disability certificate, the learned counsel for the appellant has got specific contention that there was an assurance from this Court to adopt disability covered by Exhibit A7 at the time of dismissal of I.A. No.1/2022. However, the learned counsel for the insurer strongly opposed in taking the disability as such shown in Exhibit A7 because it is not the certificate issued by the Doctor who treated MACA.No.1809 of 2013 10 him and also that it is not by a Medical Board. However, evaluating the injuries sustained by the claimant as well as the period of treatment undergone by him and further taking into account that one of the injury is Comminuted fracture left patella and the disability certificate specifically states that he had partial Ankylosis for left knee and he is unable to squat or climb stairs or walk for long distances, I am of the view that the permanent disability of whole body can be taken as 7% instead of 9% certified in Exhibit A7. 18. In view of nature of injuries and also period of treatment undergone by him loss of earnings for 4 months can also be taken especially because he is a coolie. Hence, towards **loss of earning** the claimant is entitled to get Rs.4,000x4=Rs.16,000/-. Deducting - the amount already awarded the balance would be **Rs.7000/** (Rs.16000-9,000). Towards **permanent disability** the claimant is entitled to get **Rs.60,480/-** (Rs.4,000x12x18x7/100). Towards **pain and suffering** Rs.12,000/- can be granted. Deducting the amount already awarded the balance would be **Rs.6,000/-** (Rs.12,000-6,000). Towards **loss of amenities** the Tribunal awarded only Rs.3,000/-. Considering the nature of injuries and occupation of the claimant it can be enhanced to Rs.10,000/- in MACA.No.1809 of 2013 11 total. Deducting the amount already awarded the balance would be **Rs.7,000/-** . Towards bystander expenses Tribunal awarded Rs.700/-. He has undergone inpatient treatment for seven days. Towards **bystander expenses** Rs.150x7=1,050/-. Deducting the amount already awarded the balance would be **Rs.250/-** (1,050700). So the claimant is entitled for the enhanced compensation of Rs.80,730/- (Rs.60,480 + 7,000 + 6,000+7,000+250) rounded of to Rs.80,750/-. 19. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.80,750/(Rupees eighty thousand seven hundred and fifty only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the **date of petition on 20.3.2004** till realisation. The 3[rd] respondent 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. 20. The appellant 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 learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. MACA.No.1809 of 2013 12 The Tribunal found that there is violation of policy conditions, since the 1[st] respondent has no valid driving license. The police charge also reveals that there is charge under Sections 279, 337, 338 of Indian Penal Code and Section 3(1) r/w 181 of the Act against the rider of the motorcycle the 1[st] respondent. Though notice was duly served upon the respondents 1 and 2, there was no appearance on behalf of them before this Court also. Hence, pay and recovery ordered by the Tribunal is maintained. There will be no order as to costs. Sd/- **M.R.ANITHA JUDGE** SMF