SULAIMU S/O. MOHAMMEDHUNNY v. UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944** ## **MACA NO. 1174 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 3609/2004 OF MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL THRISSUR** ## **APPELLANT/PETITIONER:** **SULAIMU S/O. MOHAMMEDHUNNY, VADAKKEPURATHU HOUSE, THIRUVATHRA DESAM, MANATHALA VILLAGE, TRISSUR (DT), PIN-680 516. BY ADVS. SRI.T.K.AJITH KUMAR SRI.K.S.ARUNDAS** ## **RESPONDENTS/RESPONDENTS:** - **1 MOIDEEN S/O. BEERAN, ARAVASSERY HOUSE, THIRUVATHARA DESAM, MANATHALA VILLAGE, TRISSUR (DT), PIN-680 516.** - **2 KUNJIMOHAMMED S/O.MOIDEEN HAJI, PADNJARAPURACKAL HOUSE, THIRUVATHRA DESAM, MANATHALA VILLAGE, TRISSUR (DT), PIN-680 516.** - **3 THE UNITED INDIA INSURANCE CO. LTD. SIMIS COMPLEX, KURUPPAM ROAD, THRISSUR, PIN-680 001.** - **4 R.V.SHAJITHA D/O. ALI, RAYAMARAKKARVETTIL HOUSE, EDAKKAZHIYOOR, CHAVAKKAD, TRISSUR (DT), PIN-680 506. BY ADV SRI.M.HARISHARMA** ## **OTHER PRESENT:** ## **SRI.M.HARISHARMA - R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1174/2012 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.3609/2004 on the file of Motor Accidents Claims Tribunal, Thrissur (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.3,81,000/-, which was limited to Rs.2,00,000/- due to the injuries sustained by the appellant in a motor accident occurred on 03.12.2003 at about 2.00 p.m at Pappali while the appellant was travelling in an autorickshaw bearing Reg.No.KL-8/S 6114 through Chavakkad Puthuponnani road. 2. It is alleged that the accident happened due to the rash and negligent driving of the first respondent. Second respondent was the insured; third respondent is the insurer and fourth respondent is the owner of the vehicle as on the date of accident. MACA No.1174/2012 3 3. Before the Tribunal, respondents 1, 2 and 4 remained exparte. Third respondent, insurer alone filed written statement admitting the policy coverage with respect to the offending vehicle. All other allegations regarding the age, income and occupation are denied. Compensation claimed is also contended to be excessive. 4. Exts.A1 to A7 marked from the side of the appellant. Ext.B1 marked from the side of the third respondent. 5. The Tribunal on evaluating the pleadings as well as materials produced found that the first respondent, driver, is responsible for the accident. Fourth respondent, being the registered owner, held vicariously liable. Third respondent is directed to indemnify the fourth respondent. A total compensation of Rs.52,467/- was awarded, which was allowed to be realised with interest at the rate of 8% per annum from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation MACA No.1174/2012 4 awarded by the Tribunal, appellant is before this Court in appeal for various grounds stated in the memorandum of appeal. 7. Adv. Sri. M. Harisharma appeared on behalf of the third respondent. Notice as against respondents 1, 2 and 4 dispensed with at the risk of the appellant. 8. Heard the learned counsel for the appellant as well as the learned counsel for the third respondent, insurer. Lower court records were called for and perused. 9. The main contention of the learned counsel for the appellant is that the appellant was working in gulf country during the relevant time and was earning Rs.10,000/- per month. But the Tribunal notionally taken the income as Rs.2,500/-, which, according to him, is very low. He would also contend that compensation awarded under various heads are also very low and hence seeks for enhancement of compensation on all heads. 10. The learned counsel for the third respondent, insurer, on the other hand would contend that just and MACA No.1174/2012 5 reasonable compensation has already been awarded and no interference is called for at the instance of this Court in this appeal. 11. The accident in this case was occurred on 03.12.2003. Though the appellant claimed a monthly income of Rs.10,000/- and alleged to have been working at abroad, he could not produce any document either to prove that he was at abroad or to prove the income. 12. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court taken the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. In the present case, the accident was in the year 2003. The appellant was aged 35 years old at the time of accident. So the monthly income can notionally be fixed as Rs.4,000/-. 13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the MACA No.1174/2012 6 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 the loss which injured has suffered as a result of such injury. 14. 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, the heads coming under pecuniary damages and non pecuniary MACA No.1174/2012 7 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. 15. 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). 16. 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 MACA No.1174/2012 8 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. In the present case, appellant produced Ext.A5 to Ext.A7 series to prove the injury and the treatment undergone and the expenses met by him for the treatment. Appellant sustained fracture of left tibia and closed interlocking nailing was done and he had undergone inpatient treatment for 13 days at Jubilee Mission Hospital, Thrissur. An amount of Rs.19,967/- has been awarded towards medical treatment expenses. Ext.A6 discharge summary would reveal closed interlocking nailing has been done. So in view of the nature of injuries sustained by him and 13 days inpatient treatment undergone by him, loss of earning for three months can be awarded. So under the head of loss of earning appellant is entitled to get Rs.12,000/[4,000x3]. Deducting the amount already awarded, balance would be Rs.5,750/- [12,000-6,250]. Towards bystander MACA No.1174/2012 9 expenses, only an amount of Rs.1,500/- has been awarded. The accident was in the year 2003. So Rs.150/- per day can be taken towards bystander expense. Hence, towards bystander expense, appellant is entitled to get Rs1,950/[150x13]. Deducting the amount already awarded, balance - would be Rs.450/ [1,950-1,500]. 18. Towards pain and suffering, according to the learned counsel, only Rs.15,000/- has been awarded though he claimed Rs.35,000/- as compensation. In view of the injury sustained and the treatment undergone by the appellant, an amount of Rs.7,500/ - is further awarded towards pain and suffering. Towards discomforts etc. Tribunal awarded Rs.7,000/-. In view of the injury sustained and the treatment undergone by him, Rs.10,000/- seems to be reasonable towards discomforts and loss of amenities etc. Deducting the - amount already awarded, balance would be Rs.3,000/ [10,000-7,000]. 19. In the result, appeal allowed and the appellant is allowed to realise enhanced compensation of Rs.16,700/- MACA No.1174/2012 **==> picture [15 x 8] intentionally omitted <==** [5,750+450+7,500+3,000] (Rupees sixteen thousand seven hundred only) which will carry interest at the rate of 6.5 % per annum from the date of petition till realisation. The third respondent , insurer shall satisfy 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. Appellant shall provide her 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, with copy to the learned counsel for the insurer, 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**