Sivajikuttan S/O Kuttan v. Sasidharan S/O Divakaran Pillai; Syam Sanker S/O Sasidharan; The United India Insurance 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. 933 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 936/2007 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/PETITIONER:** **SIVAJIKUTTAN S/O.KUTTAN, KANDATHIL, PUNNAMADA WARD, ALAPPUZHA.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS:** - **1 SASIDHARAN S/O.DIVAKARAN PILLAI, S/121, PURATHATTU VEEDU, KOTTAMKULANGARA WARD, ALAPPUZHA-688001.** - **2 SYAM SANKER S/O.SASIDHARAN, S/121, PURATHATTU VEEDU, KOTTAMKULANGARA WARD, ALAPPUZHA-688001.** - **3 THE UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, SARADA SHOPPING COMPLEX, MULLACKAL, ALAPPUZHA-688001.** **BY ADV** **SRI.K.SANDESH RAJA - R3** **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.933/2013 ..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.936/2007 on the files of the Motor Accidents Claims Tribunal, Alappuzha (In short 'Tribunal'). The claim petition has been filed u/s.166 of the Motor Vehicles Act, 1988 (in short 'the Act') for the injuries sustained by the appellant in a motor accident occurred on 07.04.2007 due to hit by a scooter bearing Registration No.KL-04-Q-1772 at Koippally Junction, Alappuzha. It is alleged that the accident occurred due to the rash and negligent riding of the scooter by the 2[nd] respondent. The 1[st] respondent is the owner of the scooter and the 3[rd] respondent is the insurer. A total compensation of Rs.1,12,000/- has been claimed. 2. Before the Tribunal, 3[rd] respondent filed written statement admitting the policy coverage with respect to the scooter bearing Registration No.KL-04-Q-1772. Rashness and negligence attributed against the 2[nd] respondent is denied. The compensation claimed is also contended to be excess and MACA. No.933/2013 **==> picture [22 x 8] intentionally omitted <==** ## exorbitant. 3. PW1 was examined and Exts.A1 to A6 were marked from the side of the appellant. There was no evidence from the side of the respondents. On evaluating the evidence and facts and circumstances, Tribunal found that 2[nd] respondent is responsible for the accident and 1[st] respondent is held vicariously liable for the acts of the 2[nd] respondent and 3[rd] respondent-insurer is held liable to indemnify the 1[st] respondent/insured. A total compensation of Rs.41,650/- was awarded by the Tribunal. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant approaches this Court in appeal for various grounds stated in the memorandum of appeal. Adv.K.Sandesh Raja, appeared on behalf of the 3[rd] respondent – insurer. Service of notice is complete as against the 1[st] and 2[nd] respondents but there was no appearance. Lower Court records were called for and perused. 5. Heard the learned counsel for the appellant as well as the counsel for the 3[rd] respondent – insurer. 6. Injury sustained and the liability of the 3[rd] MACA. No.933/2013 ..4.. respondent is not in dispute. The challenge is only with regard to the quantum of compensation awarded by the Tribunal. 7. According to the learned counsel for the appellant, appellant was aged 23 years at the time of the accident and he was claiming a monthly income of Rs.4,000/-, but Tribunal notionally fixed his income as Rs.3,000/- per month and also contend that the Orthopedics Surgeon, Medical College Hospital, Alappuzha examined the appellant and issued disability certificate certifying 12% permanent whole body disability, and the doctor was also examined as PW1, but Tribunal refused to accept Ext.A6 disability certificate and evidence of PW1. The Tribunal awarded Rs.20,000/- only under the head of functional disability, which according to him, is illegal and improper. The compensation claimed under other heads are also very low. Hence he seeks for enhancement of compensation on all other heads. 8. The learned standing counsel for the 3[rd] respondentinsurer, on the other hand, would contend that just and reasonable compensation has already been awarded by the Tribunal and no enhancement is required at the instance of MACA. No.933/2013 ..5.. this Court. 9. With regard to the monthly income, the claim of the appellant is only Rs.4,000/-. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the Apex Court fixed 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 in the year 2007. Hence, the income Rs.4,000/- claimed can very well be accepted. Accordingly, income of the appellant is taken as **Rs.4,000/-** per month. 10. 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, of the heads coming under pecuniary damages and non MACA. No.933/2013 ..6.. 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. 11. 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 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). 12. 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 MACA. No.933/2013 ..7.. and the effect thereof on the future life of the claimant. 13. In the present case, appellant produced Exts.A3 and A5, Medical records. Ext.A3 is the discharge card issued from the Medical College Hospital, Alappuzha which would show that he has sustained fracture left forearm, fracture mandible, old through cut injury cheek. Ext.A5 is another discharge card issued from the Medical College Hospital, Kottayam, which would go to show that he had sustained Galeazzi fracture – Dislocation (L),B/L fracture mandible. 14. Ext.A6 disability certificate issued by doctor was examined as PW1. In the certificate, the doctor noted the following injuries:- 1. Mal-union of fracture Radius with loss of normal curveture (L). 2. Restriction of supination and pronation movements of forearm (Lt). 3. Pain (Lt) wrist due to post traumatic arthritis of (Lt) Inferior Radio ulnar joint causing difficulty to do heavy work. 4. Scarring and disfigurement near mouth (right MACA. No.933/2013 **==> picture [22 x 8] intentionally omitted <==** side of lip). 15. The doctor assessed permanent whole body disability at 12%, and doctor was examined as PW1 and he pleads in terms with Ext.A6-disability certificate issued by him. But the counsel for the 3[rd] respondent seriously challenged the same and it has been brought out that the appellant was given conservative treatment for fracture radius and manipulative reduction was done to restore the portion of the fracture. It was suggested to PW1 that, the disability noted by him is not correct but he denied the same. Treatment records would show that the appellant undergone 8 days inpatient treatment conservatively. The learned counsel for the respondent contend that the Tribunal has rightly refused to accept the disability certificate and evidence of PW1 in view of the injuries sustained by the appellant. 16. It has been found by the Tribunal that since the petitioner did not prove his occupation, disability suffered by him will not cause reduction in his earnings capacity. It is also found that considering the gravity of the injury sustained by the appellant, he is entitled to get compensation under the MACA. No.933/2013 ..9.. head of functional disability as the injury sustained by him dis entitles him from performing his day-to-day work smoothly and an amount of Rs.20,000/- was awarded under the head of functional disability. It is to be noted that the Tribunal has categorically found that the appellant is entitled to get a compensation under the head of functional disability, since the injury sustained would dis-entitle him to perform his day-today work smoothly. So the finding that since the appellant did not prove his occupation, the disability suffered will not cause deduction in his earning capacity is unreasonable and unsustainable in law. At the same time the disability assessed in Ext.A6 seems to be on a higher side in view of the nature of injuries and the period of treatment undergone by the appellant. But the course adopted by the Tribunal in discarding the evidence of PW1 and Ext.A6- Disability certificate _in toto_ is against the principles laid down in _**Raj Kumar(supra).**_ At the same time on evaluating the nature of injuries sustained and short period of inpatient treatment undergone by the appellant 12% permanent disability assessed by the doctor seems to be on a higher side. Having MACA. No.933/2013 ..10.. regard to the totality of the facts and circumstances the whole body permanent disability is taken as 7% instead of 12% certified by PW1. 17. Tribunal has already taken loss of earnings for three months. In view of the injuries sustained and the period of treatment undergone by the appellant, loss of earnings for three months taken by the Tribunal seems to be reasonable, and the compensation towards loss of earnings can be re-fixed at Rs.12,000(4,000x3). Deducting the amount already awarded by the Tribunal, the balance would be **Rs.3,000/-** (12,000-9,000). 18. Towards by stander expenses Tribunal awarded Rs.800/-. The accident was in the year 2007, hence Rs.250/per day can be taken towards the expenses of bystander. Thus, appellant is entitled to get Rs. 2,000/-(250x8) towards bystander expenses. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.1,200/-** (2,000-800). 19. The learned counsel further contented that compensation awarded towards pain and suffering is only Rs.10,000/-. The medical evidence adduced by the appellant MACA. No.933/2013 ..11.. would show that he has sustained two fractures and undergone 8 days inpatient treatment. An amount of Rs.15,000/- seems to be reasonable towards pain and sufferings. Deducting the amount already awarded, appellant is entitled to get **Rs.5,000/-** (15,000-10,000) towards pain and sufferings. Towards permanent disability the amount can be re-fixed. Permanent disability has already been taken as 7%. The appellant was 23 years old at the time of the accident. The following principles in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** which has been approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '18'. So, amount would be, Rs60,480/-(4,000x 12x18 x7/100). Deducting the amount already awarded, the balance would be **Rs.40,480/-** (60,480-20,000). Further the learned counsel would content that no amount has been awarded towards loss of amenities. In view of the nature of injuries and permanent disability suffered by the appellant, an amount of **Rs.10,000/-** seems to be reasonable towards loss of MACA. No.933/2013 **==> picture [28 x 8] intentionally omitted <==** amenities. Hence appellant is entitled to get an enhanced compensation of Rs.59,680/- rounded off to **Rs.59,700/-** (40,480+3,000 +1,200+ 5,000 +10,000). 20. In the result, appellant is allowed to realize enhanced compensation of **Rs.59,700/-** (Fifty nine thousand and seven hundred only) in this appeal, which will carry interest at the rate of 6.5% per annum from the date of petition till realization. 3[rd] respondent/insurer is directed to pay the enhanced 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. 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