Sujith P.M. v. R. Janaki and Sasidharan and The Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 27[TH] DAY OF JANUARY 2022 / 7TH MAGHA, 1943** **MACA NO. 1990 OF 2011** **(AGAINST THE AWARD DATED 19.10.2010 MADE IN O.P.(MV) NO.4148/2003** **ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR)** ## **APPELLANT/PETITIONER:** **SUJITH.P.M, S/O.P.K.MADHAVAN, RESIDING AT PLAKKATTU PARAMBIL HOUSE P.O,THAIKKATTUSSERY, EDAKUNNY VILLAGE, THRISSUR DISTRICT BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.JIBU P THOMAS SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **1 MRS.R. JANAKI RESIDING AT 100-A.PAKSHIRAJA APARTMENTS, PULLAKULAM MAIN ROAD,COIMBATORE-641015 2 SASIDHARAN, S/O.UNNIKRISHNAN NAIR, RESIDING AT VELAKKATHARA VEETTIL, VELLAPPAYA VILLAGE, MANITHATA DESOM, THRISSUR DISTRICT-680596 3 THE ORINTENTAL INSURANCE COMPANY LIMITED KPN SHOPPING COMPLEX, OPP.THIRUVAMBADY TEMPLE, SHORNUR ROAD,THRISSUR-680001.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1990 of 2011 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.4148/2003 on the file of Motor Accidents Claims Tribunal, Thrissur. 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 06.11.2003 at about 12.15 p.m. while the appellant/claimant was traveling on the pillion of a motorcycle bearing registration No.KL8/X 7971 through ollur Thrissur public road. It is alleged that a car bearing registration No.KL-8/R 911 came from opposite direction and hit on the motor cycle in which the claimant was traveling, as a result he sustained grievous injuries. He was immediately taken to Elite Mission Hospital, Thrissur, and he had undergone treatment from 06.11.2003 to 20.11.2003. The accident alleged to have happened due to the rash and negligent driving of the car by the 2[nd] respondent which is owned by the 1[st] respondent and 3[rd] respondent is the insurer. Total compensation of Rs.3,00,000/ (Rupees three lakhs only) has been claimed. 3. Before the Tribunal respondent Nos.1 and 2 remained ex-partie. MACA.No.1990 of 2011 3 4. The 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle. The policy issued is Act only one. It is contented that the accident occurred due to the rash and negligent riding of the motorcycle by its rider and not due to negligence of the 2[nd] respondent. It is further contended that the 2[nd] respondent was not having valid driving license as on the date of accident. The claim under various heads by the claimant is highly excessive and exorbitant and hence denied also. 5. There was no oral evidence from either side. Exhibits A1 to A11 were marked from the side of the appellant/claimant. On evaluating the pleadings and other materials, the Tribunal awarded a compensation of Rs.1,43,100/-. The 2[nd] respondent the driver of the car has found responsible for the accident. 3[rd] respondent was held liable to make good the loss. 6. Dissatisfied with the award passed by the Tribunal the claimant/appellant (here in after be referred as claimant) came up in appeal for the various ground stated in the memorandum of appeal. 7. Before this Court respondent Nos.1 and 2 are deleted from the party array at the risk of the appellant as per the order in MACA.No.1990 of 2011 4 I.A. No.1/2021. The learned Standing Counsel for the 3[rd] respondent Insurance Company alone contested the matter and both sides were heard. 8. It has been found by the Motor Accidents Claims Tribunal (Tribunal in short) that the 2[nd] respondent the rider of the offending vehicle is responsible for causing the accident. Accordingly, the liability was fixed by the 3[rd] respondent insurer. The findings with respect to the negligence on the part of the 2[nd] respondent is not disputed. The only dispute is with regard to the quantum of compensation awarded by the Tribunal. 9. According to the learned counsel for the appellant, the claimant was 19 years old at the time of accident and he was a worker at Apollo Tyres, Perambra and was having a permanent monthly income of Rs.4,000/-. But, the monthly income of the claimant was notionally fixed as Rs.3,000/- which is very low. It is also contended that the disability certificate issued by the Orthopedic Surgeon attached to Medical College Hospital, Thrissur, was produced, certifying the disability as 11%. The Tribunal adopted 5% as disability which is very low. He would also contend that the multiplier adopted by the Tribunal as 16 is wrong, since, the claimant was 19 years at the time of accident and it ought to MACA.No.1990 of 2011 5 have been 18. 10. The learned Standing Counsel for the insurance company on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and the disability certificate produced is not of medical board the doctor was not examined. The disability shown is not of his whole body and hence according to the learned counsel the disability of 5% taken by the Tribunal is reasonable and no interference is called for at the instance of this Court. 11. The monthly income claimed by the claimant is Rs.4,000/- per month. He claims to be a worker in Apollo Tyres, Perambra. Exhibit A11 is the certificate issued by the Manager of Apollo Tyres Ltd., Permbra, certifying that the claimant has been engaged as a production apprentice from 2.6.2002 onwards and was regularised on their rolls on 18.1.2006. He was not available for work from 06.11.2003 ti 18.7.2004, following a road accident and they have not paid any wages or benefits to him during this period of absence. The certificate does not reveal the age and income of the claimant. 12. In **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , MACA.No.1990 of 2011 6 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. 13. 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 14-08-2008. 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 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 MACA.No.1990 of 2011 7 present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 14. The accident in this case admittedly was on 06.11.2003. Exhibit A11 would show that he was worker in Apollo Tyres, Perambra. So, taking into account the facts and circumstances, I find it just and proper to accept the monthly income of the claimant as Rs.4,000/- claimed in the petition. 15. 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 or fancy, though some conjecture MACA.No.1990 of 2011 8 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. 16. 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). 17. 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.1990 of 2011 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. 18. In this case, due to the accident the claimant suffered, Fracture of right humerus mid shaft, Fracture both bones, right leg lower third and Lacerated wound scalp. He had undergone 15 days inpatient treatment from 06.11.2003 to 20.11.2003. Exhibit A11 would certify that he has been absent from 06.11.2003 to 18.7.2004 following the road accident. However, the manager who issued Exhibit A11 has not been examined and it cannot be said that the contends in Exhibit A9 is proved. However, taking into account the grievous nature of injuries sustained by the claimant and the period of treatment undergone by the claimant, it can reasonably be concluded that he would be unable to attend the MACA.No.1990 of 2011 10 work for a period of 5 months. So, **loss of earning** can be awarded for 5 months @ 4,000/- that will come to Rs.20,000/(4,000x5), deducting the amount already awarded the balance would be **Rs.11,000** /- (20,000-9,000). 19. The next contention of the learned counsel is with regard to the disability assessed by the Tribunal as 5%. Exhibit A6 the disability certificate would show that he was examined by Assistant Professor, Department of Orthopedics, Medical College Hospital, Thrissur on 11.1.2006 and noted the following factors: _1. Malunited fracture of fibula ® (5[0] angulation)_ _2. United fracture of Tibia ® (As per X-ray on 11.01.2006) with nail in situ._ _3. There is mild stiffness of ® Knee joint (Range 0[0] -120[0] ) (Normal 0[0] -140[0] ) Dorsiflexion 15[0] -25[0] Plantar flexion 25[0]_ _4. He has stiffess of ® ankle joint._ _5. He has united fracture of ® humerus._ _6. He has stiffness of ® shoulder joint. Last 20[0] of flexion and both rotations of shoulder joint is restricted._ _7. He will need major surgery for the removal of implant._ 20. The doctor certified that the permanent disability as 11%. The certificate Exhibit A7 would not state that 11% permanent disability assessed is whole body disability. However, evaluating the nature of injuries and disabilities which has been MACA.No.1990 of 2011 11 noted by the doctor at the time of examination after two years of the accident certifies 11% permanent disability, though it is not recorded as certified as whole body. He is a production worker. So, the disability to his lower limb would definitely affect his future earning capacity to a certain extent. So, taking into account the facts and circumstances, I am of the view that the permanent disability assessed @ 5% by the Tribunal is seems to be very low and it can be re-fixed as 8%. So also the multiplier to be applied in the present case would be 18 instead of 15 fixed by the Tribunal. So the claimant would be entitled to get under the head of **future loss earning** capacity Rs.6,9120/- (Rs.4,000x12x18x8/100). Deducting the amount already awarded under the head of disability, the balance would come to **Rs.40,320** /- (69,120-28,800). Towards **Loss of amenities Rs.10,000/-** can be awarded. So the claimant is entitled for the enhanced compensation of Rs.61,320/(40,320+11,000+10,000). 22. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.61,320/- (Rupees sixty one thousand three hundred and twenty only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition excluding the period of delay of 296 days in filing the MACA.No.1990 of 2011 12 appeal. 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, after deducting the liability of the appellant/claimant towards Balance Court Fee. 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