Siyas Babu V.P. v. Abdul Salam; K.T. Aboobacker; National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943** **MACA NO. 1318 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1555/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **MANJERI** ## **APPELLANT/PETITIONER:** **SIYAS BABU V.P., AGED 28 YEARS, S/O. POCKER, KOOLAMADATHIL HOUSE, NARUKARA P.O., VIA. MANJERI, MALAPPURAM DISTRICT.** ## **BY ADV SRI.P.SAMSUDIN** ## **RESPONDENTS/RESPONDENTS:** **1 *ABDUL SALAM, S/O. ALAVI, CHARIYIL HOUSE, P.O. VALLIKKAPATTA, KADANNAMANNA, MALAPPURAM DISTRICT. [DELETED]** *** THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY IN THE DELAY PETITION AND THE APPEAL AS PER ORDER DATED 28/09/2021 IN I.A. NO. 1/2021 IN CMA NO. 1496/2009 IN MACA NO.1318/2009.** **2 K.T.ABOOBACKER, S/O. MOIDEEN KALLINGATHODI HOUSE, P.O.KODUR, CHEMAKADAVU, MALAPPURAM DISTRICT.** **3 THE NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI, MALAPPURAM DISTRICT.** **BY ADVS. SRI.P.G.JAYASHANKAR P.JAYASANKAR E.NARAYANAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **20.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1318/2009 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.1555/2004 on the file of the Motor Accidents Claims Tribunal, Manjeri. The claim petition was filed under Section 166 of the Motor Vehicles Act, out of the injury sustained to the claimant in an accident occurred on 05.08.2004. 2. It is alleged that on 05.08.2004 at about 17.15 hours while the appellant/claimant (hereinafter be referred as the claimant) was driving the goods vehicle bearing No.KL 10.M/5979 from Tirur to Manjeri and reached at Edarikkode Schoolpadi in Clari amsom, a bus bearing No.KL 10.K/6960 came from opposite side and hit against the goods vehicle driven by the claimant, resulting in grievous injuries to him. Immediately he was taken to Moulana Hospital, Perinthalmanna and admitted there for 10 days. It is alleged that the accident occurred due to the rash and negligent driving of the first respondent. The second respondent is the owner of the vehicle and third respondent is the insurer of the vehicle. 3. Before the Tribunal, first and second respondents M.A.C.A.No.1318/2009 3 remained exparte. Third respondent filed written statement admitting the policy coverage with respect to bus bearing No.KL 10.K/6960. It is further contended that the accident occurred solely due to the rash and negligent driving of the goods vehicle bearing No.KL 10.M/5979 by the claimant and the case was charged against the claimant also. It is also contended that the police charge was filed against both the drivers of the vehicles. So the petition is bad for non-joinder of necessary parties. The claimant was also put to strict proof regarding the averments of the age and occupation. 4. There was no oral evidence adduced from either side. Exts.A1 to A8 series were marked on the side of the claimant. Thereafter, on evaluating the pleadings as well as the documents produced from the side of the claimant the Tribunal found that the claimant as well as the driver of the bus are liable and accordingly contributory negligence was found against the claimant and a total amount of Rs.42,250/- was awarded by the Tribunal, from that, 50% was deducted towards contributory negligence. Aggrieved by the award passed by the Tribunal, the claimant came up in appeal for the various ground stated in the memorandum of appeal. 5. Claimant filed I.A.No.1/2021 to delete the first M.A.C.A.No.1318/2009 4 respondent from the array of parties. As per order dated 28.09.2021, this Court deleted the first respondent from the party array. Vakalth filed on behalf of 2[nd] respondent. 6. Heard the counsel for the claimant and the Standing Counsel for the Insurance Company. 7. Contributory negligence found against the claimant is not challenged and the argument was only with regard to the quantum of compensation awarded by the Tribunal. According to him, the monthly income of the claimant was notionally fixed as Rs.2,500/- which is very low since the claimant was proved to be a driver of the heavy goods vehicle. It is also his contention that the amount awarded towards disability and bystanders expenses etc are very low. Hence he seeks for enhancement of compensation on the various grounds. 8. The learned counsel for the third respondentinsurance company on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 9. As stated earlier, the dispute of the claimant is with respect to the quantum of compensation awarded by the Tribunal. M.A.C.A.No.1318/2009 5 The Tribunal notionally fixed the monthly income as Rs.2,500/- per month. There is no oral evidence adduced from the side of the claimant. 10. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. 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. M.A.C.A.No.1318/2009 6 11. In Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], taking note of the earlier decision in Ramachandrappa's case, the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 12. In Rajan v. Soly Sebastian & Anr.[(2015)10 SCC 506 : 2015 (4) KLT Suppl. 10 (SC)], the Apex court fixed the monthly income of a driver notionally as Rs.3,500/- in an accident occurred in the year 2000. 13. The learned counsel for the third respondentInsurance Company in this context bring to my attention Chandra @ Chanda @ Chandraram & Anr. v. Mukesh Kumar Yadav & Ors. [2021 M.A.C.A.No.1318/2009 7 SCC Online SC 850] and would contend that, in relation to a claim with respect to the accident occurred in the year 2016, where the driver sustained injury, his income was notionally fixed by the Apex Court as Rs.8,000/-. It is also made clear that the accident in that case was taken place at Ajmir in Rajasthan. So taking into account the facts and circumstances of the case and the cost of living and the income of the driver in Kerala during the relevant period, I am of the view that the monthly income of the claimant can be fixed as Rs.5,000/- per month. 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 consideration any speculation M.A.C.A.No.1318/2009 8 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 M.A.C.A.No.1318/2009 9 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). 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. So in the present case the injuries noted are severe bleeding from mandibular region, lacerated wound lower lip (R) thorough and thorough exposing lower border of mandible upto neck with laceration to facial artery, fracture tooth lacerated wound right leg and right knee. Ext.A3 series discharge summary would also state about the lengthy procedures undergone by him in the hospital. It has been stated in the discharge certificate that thorough and thorough flap detached from the mandible exposing the lower border of the mandible upto the neck and wound on facial arteries also. He also sustained fracture of tooth. M.A.C.A.No.1318/2009 10 18. Thorough wound debridement and repair of the wound in layers done to avoid oral fistula. Patient was ventilated for one day. Multiple facial wounds were sutured also. So a mere glance through the discharge certificate would reveal that grievous injuries has been sustained to the claimant on his face and surgery and suturing were also done. Ext.X1 disability certificate issued by the Medical Board certified 1% disability. It has also come out that he has undergone I.P. treatment for 10 days. 19. In view the injuries sustained and treatment undergone by the claimant loss of income for 3 months can reasonably be awarded. That will come to Rs.15,000/- [Rs.5000x3]. Deducting the amount already awarded, the enhanced amount towards loss of earnings is **Rs.10,000/** - [15000-5000]. 20. Tribunal awarded Rs.5,400/- under the head disability. In paragraph No.20 of the Raj Kumar, Apex Court has held that in the case of injured claimant with disability, what is calculated is the future loss of earning of the claimant, payable to the claimant. There is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses as in death cases. M.A.C.A.No.1318/2009 11 21. In this case, monthly income of the claimant has been fixed as Rs.5,000/- claimant was 23 years old at the time of accident. So the multiplier to be adopted as held in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802] followed the Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65] and approved by Constitutional Bench of the Apex Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the multiplier to be applied is '18'. The disability assessed by the Medical Board is 1%. So the compensation towards future loss of earning power is Rs.10,800/- [5000x12x18x1/100]. Deducting the amount - already awarded the enhanced compensation would be **Rs.5,400/** [10800-5400]. 22. Towards bystanders expenses, the Tribunal awarded Rs.1,000/-. The accident occurred in the year 2004. So bystanders expenses can be taken as Rs.200/- per day. So under that head in total claimant is entitled to Rs.2,000/- [200x10]. After deducting the amount already granted by the Tribunal, the claimant would be entitled to get an amount of **Rs.1,000/-** [2000-1000]. 23. Towards pain and suffering, the Tribunal awarded Rs.5,000/-. He has produced medical bills for Rs.23,974/-. He was M.A.C.A.No.1318/2009 12 also undergone inpatient treatment at Moulana Hospital, Perinthalmanna for 10 days. So taking into account the nature of injuries and the treatment undergone by him and the surgery and suturing etc, I find it just and proper to fix the amount towards pain and sufferings as Rs.10,000/-, instead of Rs.5,000/-. After deducting the amount already granted by the Tribunal, the claimant would be entitled to get an amount of **Rs.5,000/-** [10,000-5,000]. 24. So, in total, the enhanced compensation would be Rs.21,400/- (Rupees twenty one thousand four hundred only) [10000+5400+1000+5000] in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition till realisation. In view of the contributory negligence of the claimant at 50%, from the said amount ½ to be deducted. The balance enhanced compensation would be **Rs.10,700/-** (Rupees ten thousand seven hundred only). Respondent No.3 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 a certified copy of this judgment. 25. The appeal is filed with a petition to condone delay of 111 days. While condoning the delay by order dated 28.09.2021 in M.A.C.A.No.1318/2009 13 C.M.Appl.No.1496/2009, it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, for the above said period, no interest is liable to be paid to the claimant. 26. 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, within one month from the date of receipt of a certified copy of this judgment. There will be no order as to costs. Sd/- **M.R.ANITHA** **JUDGE** shg