SUJITH S/O THANKACHAN v. JOSE MATHEW, PRABKARAN KUDILIMATTATHIL, and UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943** ## **MACA NO. 917 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 147/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **PALA** ## **APPELLANT/CLAIMANT:** **SUJITH S/O.THANKACHAN, KUTTIKATTU HOUSE, PATHAMPUZHA P.O., POONJAR THEKKEKARA VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SRI.BABY THOMAS SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS/RESPONDENTS:** **1 JOSE MATHEW S/O.MATHEW, PURAKAYAM, KANAYANKAVAYAL P.O., PERRUVANTHANAM VILLAGE, MUNDAKAYAM - 685 532. 2 PRABKARAN KUDILIMATTATHIL HOUSE, HOUSE NO.VIII/154, KUMALY, PIN - 685 509. 3 THE BRANCH MANAGER UNITED INDIAN INSURANCE CO., PONKUNNAM BRANCH, KOTTAYAM DISTRICT - 686 001. BY ADVS. T.C.SOWMIAVATHY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU** ## **OTHER PRESENT:** **ADV.T.C SOUMIAVATHY-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **04.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.917/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V.)No.147/2009 on the file of Motor Accidents Claims Tribunal, Pala. Claim petition was filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) for compensation of Rs.1,35,000/- for the injuries sustained by the appellant/claimant out of a motor accident occurred on 11.10.2008 at about 8.15 p.m. The above case was tried along with MACA No.430/2010 and a common Award was passed. 2. It is alleged that the claimant was riding motorcycle bearing registration No.KL-3/N 2627 through National Highway 220 and when reached near Kuttikanam Junction a Jeep Reg.No.KL-5/G 4671 driven by the first respondent in a rash and negligent manner hit the motorcycle resulting in serious injuries to the appellant/claimant. Second respondent is the ownr of the jeep. The thrid respondent is the insurer of MACA No.917/2013 3 the offending vehicle. 3. Before the Tribunal, respondents 1 and 2 remained exparte. Third respondent insurer filed written statement admitting the policy coverage with respect to the offending vehicle. The rashness and negligence on the part of the first respondent, driver of the vehicle, is denied. It is contended that it is due to the negligence of the appellant/claimant that the accident occurred. 4. Exts.A1 to A15 were marked from the side of the appellant/claimant. There was no oral evidence from either side. 5. On evaluating the pleadings and the materials produced, Tribunal found that the accident happened due to the rash and negligent driving of the first respondent. The third respondent insurer was held liable to pay the amount. Tribunal awarded a total compensation of Rs.50,589/- with interest at the rate of 7.5% per annum from the date of petition till realisation. MACA No.917/2013 4 6. Dissatisfied with the quantum of compensation awarded by the Tribunal appellant/claimant (hereinafter be referred as claimant) came up in appeal for various grounds stated in the memorandum of appeal. 7. Adv.Smt. Sowmiavathy appeared on behalf of the third respondent, insurer. Since the third respondent has admitted the insurance policy, notice on respondents 1 & 2 is dispensed with at the risk of the claimant. Both sides were heard. Lower court records were called for and perused. 8. According to the learned counsel for the claimant, the claimant was a Salesman, aged 23 years and claimed a monthly income of Rs.6,000/-. But the Tribunal took the monthly income as Rs.4,000/-, which, according to her, is very low. She would also contend that the claimant suffered grievous injuries and disability certificate certifying 6% permanent disability has been produced. But the Tribunal taken only 3% permanent disability. So she seeks for enhancement of compensation on all heads. 9. Claimant is aged 23 years and Rs.6,000/- has been MACA No.917/2013 5 claimed as monthly income. Though no evidence as such has been produced by the claimant to prove the actual income, as per the dictum laid down in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the income claimed by the claimant as Rs.6,000/can very well be accepted since accident occurred on 11.10.2008. 10. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the MACA No.917/2013 6 injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. 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 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 MACA No.917/2013 7 the loss which injured has suffered as a result of such injury. 11. 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). 12. In paragraph No.5 of the above decision, 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 permanent disability, Future medical expenses, Loss of MACA No.917/2013 8 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. 13. In the present case, the claimant sustained the following injuries: 1. Type II compound fracture both bone on (Rt.) leg. 2. Lacerated wound 3 x 2 cm over anterior aspect of (Rt.) knee. 3. Lacerated wound 3 x 1 cm over dorsum of middle finger (Rt.). 4. Lacerated wound 2 x 1 cm dorsum of ring finger (Rt.). 5. Lacerated wound 3 x 1 cm over (Lt) eyebrow. 6. (Rt.) heel pad avulsion. 7. Pain and abrasion all over the body. 14. Initially on 11.10.2008 he was admitted on M.M.T.Hospital, Mundakkayam and discharged on the subsequent day and he was admitted on 12.10.2008 and 9 MACA No.917/2013 discharged on 20.10.2008. In total, there are 9 days inpatient treatment. Ext.A8 disability certificate has been issued by Senior Consultant, Orthopaedics, General Hospital, Pathanamthitta, in which, he certified permanent disability at 6% as whole body disability. But the Tribunal has taken the disability at 3%. Admittedly the doctor was not examined. He was not the doctor who treated him also. The total inpatient treatment undergone by the claimant was also 9 days. So taking into account the nature of injuries and other facts and circumstances, permanent disability can reasonabley be taken as 4% instead of 3% adopted by the Tribunal. 15. In view of the fact that he had Type II compound fracture both bone on right leg and other lacerated injuries to right knee and right finger etc, loss of earnings for four months can be awarded. That will come to Rs.24,000/[6,000x4]. Deducting the amount already awarded, the balance would be Rs.20,000/- [24,000-4,000]. 16. Towards extra nourishment only Rs.250/- was awarded. It is enhanced to Rs.1,000/-. So the balance would be MACA No.917/2013 10 Rs.750/- [1,000-250]. Towards damage to clothing Rs.250/- was awarded. The accident was in the year 2008. So Rs.250/- more is awarded towards damage to clothing. Towards bystander expense Rs.300/- was awarded by the Tribunal. It has come out that the claimant had undergone 9 days inpatient treatment since the accident was in the year 2008, Rs.250/per day can be taken as the expense of bystander. So deducting the amount already awarded, the claimant is entitled to get towards bystander expenses Rs.1,950/[250x9-300]. Towards pain and suffering, in view of the nature of injuries and period of treatment undergone by him an amount of Rs.15,000/- can be awarded. Deducting the amount already awarded, balance would be Rs.5,000/- [15,000-10,000]. 17. Next is with regard to the disability. It has already been found that the permanent disability can very well be taken at 4%. As per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] approved by the Constitution Bench in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], the MACA No.917/2013 11 suitable multiplier would be '18'. So, towards permanent disability, claimant is entitled to get Rs.51,840/- [6,000x12x 18x4/100]. Deducting the amount already awarded, the balance would be Rs.27,360/ - [51,840-24,480]. As per the dictum laid down in Raj Kumar's case, once the compensation is awarded towards permanent disability, claimant would be entitled to get some amount towards loss of amenities also. Tribunal awarded Rs.8,000/- towards loss of amenities. In view of the nature of injuries and the period of treatment undergone by the claimant Rs.10,000/- is awarded towards loss of amenities. Hence the balance would be Rs.2,000 /- [10,000-8,000]. Hence, in total, the claimant is entitled to get Rs.57,310/- [20,000+750+250+1,950+5,000+27,360+ 2,000], which is rounded off to Rs.57,300/-. 18. In the result, appellant/claimant is allowed to realise enhanced compensation of Rs.57,300/ - (Rupees fifty seven thousand three hundred only), which will carry interest at the rate of 7.5% per annum (excluding 186 days delay caused in filing the appeal) from the date of petition till realisation. 12 MACA No.917/2013 Third respondent-insurer 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. 19. 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 certified copy of this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** **JUDGE** **shg/**