Sreemathi d/o Raman v. New India Assurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** **MACA NO. 2058 OF 2014** **AGAINST THE AWARD IN OPMV 1309/2002 DATED 29.11.2007 ON THE FILE OF HON'BLE PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** SREEMATHI D/O.RAMAN,ALAPPADANPOTTA HOUSE, POST RAMANATTUKARA,KOZHIKODE BY ADV SMT.K.V.RESHMI ## **RESPONDENT/2ND RESPONDENT:** NEW INDIA ASSURANCE COMPANY LIMITED BRANCH OFFICE, POOTHERY BUILDING, FEROKE 673 631,KOZHIKODE SRI. LAL K.JOSEPH-RESPONDENT **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2058 of 2014 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (M.V) No.1309/2002 on the file of Motor Accidents Claims Tribunal, Kozhikode. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation for the injury sustained by the appellant/claimant (herein after be referred as claimant) in an accident occurred on 19.3.2002 at about 5.30 p.m., due to hit with a motorcycle bearing Reg. No.KDE 107. It is alleged that the accident happened due to the rash and negligent riding of the 1[st] respondent. 1[st] respondent is the owner cum driver of the motorcycle. 2[nd] respondent is the insurer. Total compensation of Rs.2,00,000/- has been claimed. 2. Before the Tribunal, 2[nd] respondent filed written statement denying the rashness and negligence on the part of the 1[st] respondent. Policy coverage with respect to the offending vehicle has been admitted. 3. There is no oral evidence adduced from either side. Exhibits A1 to A3 were marked from the side of the claimant. The MACA.No.2058 of 2014 3 Tribunal on evaluating the facts and circumstances and evidence adduced, awarded a total compensation of Rs.11,000/-. 4. 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. 5. Respondent/insurer appeared through Standing Counsel Adv.Lal K.Joseph. Heard the learned counsel for the appellant and also the learned Standing Counsel for the respondent/insurer. Lower court records were called for and perused. 6. According to the learned counsel for the claimant, the claimant was a house wife and she claimed a monthly income of Rs.3,500/-. But the Tribunal has not taken any income with respect to the claimant. It is also contended that the claimant sustained bimalleolar fracture left ankle and she had undergone open reduction and internal fixation. Total inpatient treatment was for a period of seven days. The Tribunal awarded a meager amount of Rs.11,000/-. Hence, the learned counsel seeks for enhancement of compensation on all heads. MACA.No.2058 of 2014 4 7. The learned Standing Counsel on the other hand would contend that no evidence as such has been adduced from the side of the claimant. However, just and reasonable compensation has already been awarded by the Tribunal on all heads. Hence, no interference is called for at the instance of this Court. 8. The claimant in this case alleged to be a house wife. The accident occurred on 19.3.2002. In this context **Sobhag Mal Jain** ## **v. State of Rajasthan and Ors. 2006 KHC 4068 : AIR Raj 66,** is relevant to be quoted. That was a case in which a house wife sustained injury and accident occurred on 08.8.1984 and her monthly income has been taken as Rs.3,000/-. **Lata Wadhwa &** **Ors v. State of Bihar AIR 2001 SC 3218 : 2001 KHC 892** three Judge Bench of the Apex Court while fixing compensation to victims who lost life as also injured in connection with the 150[th] birth anniversary of Sir Jamsedji Tata on 03.3.1989 in Jamshedpur, taken the monthly income of house wives as Rs.3,000/-. 9. In this case the accident occurred on 19.3.2002. Hence, in view of the facts and circumstances and the principles of law laid down in the above cited decisions, the monthly income of MACA.No.2058 of 2014 5 Rs.3,500/- claimed is reasonable and hence is accepted. 10. 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. 11. In personal injury cases, heads under which the MACA.No.2058 of 2014 6 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. 12. 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). 13. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss MACA.No.2058 of 2014 7 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. 14. In this case, the claimant sustained Bimalleolar fracture left ankle and she had undergone open reduction and internal fixation. As per Exhibit A3 referral card issued from Medical College Hospital, Kozhikode, admission as inpatient treatment was from 26.3.2002 to 29.3.2002 and diagnosis as on 26.3.2002 is infected Bimalleolar fracture. It would go to show that there was subsequent infection also to the injury sustained. 15. So, in view of the facts and circumstances, it can reasonably concluded that the claimant might have been prevented from doing routine household works for a period of three months. So, loss of earnings for three months can very well be granted, that will come to Rs.3,500x3=Rs.10,500/-. Deducting the amount already awarded, balance would be Rs.7,500/- (Rs.10,500-3,000). Towards pain and suffering only Rs.5,000/- has been awarded. In view of the injury sustained and Exhibit A3 showing infection to the MACA.No.2058 of 2014 8 injuries and surgery for internal fixation etc, towards pain and suffering additional amount of Rs.5,000/- can be awarded. 16. The learned counsel for the claimant pressed for enhancement of compensation for loss of amenities since only Rs.1,000/- has been awarded by the Tribunal. 17. The learned counsel for the insurer, vehemently objects in awarding any further compensation under that head since no disability has been proved. However, taking into account the nature of injuries and procedures of treatment undergone by the claimant an amount of Rs.2,500/- is further awarded towards loss of amenities. No amount seen awarded towards damage to clothing. The accident occurred in the year 2002, so an amount of Rs.300/- is awarded towards damage to clothing. No amount seen awarded towards extra nourishment. Being a house wife, an amount of Rs.1,000/- is awarded towards extra nourishment. So, the claimant is entitled to get enhanced compensation of Rs.16,300/- (Rs.7,500 + 5,000 + 2,500 + 300 + 1,000). 18. In the result, appeal allowed by enhancing compensation to an amount of **Rs.16,300/- (Rupees sixteen thousand three** MACA.No.2058 of 2014 9 **hundred only)** which will carry interest @ 7.5% per annum from the date of petition excluding the period of delay of 2269 days in filing the appeal. The respondent/insurer 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 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. There will be no order as to costs. Sd/- **M.R.ANITHA JUDGE** SMF