Sumesh V.K v. Oriental Insurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** ## **MACA NO. 899 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 104/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **KALPETTA** ## **APPELLANT/PETITIONER:** **SUMESH V.K AGED 32 YEARS S/O.SANKARAN, VADEKKANDI HOUSE, KARUMALA POST, BALUSSERY (VIA), KOZHIKODE DISTRICT** **BY ADV CELINE JOSEPH** ## **RESPONDENT/RESPONDENT NO.3:** **THE BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LTD BRANCH OFFICE, KINGSWAY BUILDING, MAVOOR ROAD JUNCTION, CALICUT-673001** **BY ADV SRI.PMM.NAJEEB KHAN** ## **OTHER PRESENT:** **ADV.PMM NAJEEB KHAN-RESPONDENT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.899/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.104/2010 on the file of Motor Accidents Claims Tribunal, Kalpetta. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) towards compensation for the injury sustained by the claimant in a motor accident occurred on 08.01.2010, for a total compensation of Rs,7,87,000/-, which was limited to Rs.5,00,000/-. (Appellant/claimant will hereinafter be referred as the claimant). 2. It is alleged that on 08.01.2010 at about 9.00 a.m while claimant was travelling from Meenangadi to Karimbadi as pillion rider on a motorcycle bearing Reg.No.KL-12E/683 ridden by the first respondent and when they reached at Chendakuni, a dog ran across the road and rider of motorcycle lost control over the vehicle and it capsized. Thereby, the 3 MACA No.899/2013 claimant had sustained serious injuries. It is alleged that the accident occurred due to the rash and negligent riding of the motorcycle by first respondent. 2[nd] respondent is the owner of the motorcycle. The motorcycle is insured with the 3[rd] respondent. 3. Before the Tribunal, respondents 1 and 2 filed written statement jointly. First respondent denied the rashness and negligence attributed against him. It is contended that the amount of compensation claimed under various heads are excessive. Third respondent filed separate written statement admitting the policy coverage with respect to the motorcycle. Rashness and negligence on the part of the first respondent is denied. 4. On the side of the claimant, Exts.A1 to A9 and Ext.C1 were marked, Exts.B1 to B3 were marked from the side of the respondents. 5. On evaluating the pleadings as well as the documents produced from either side, the Tribunal awarded a MACA No.899/2013 4 total amount of Rs.1,74,180/- with 7.5% interest from the date of petition till realisation and held that respondents 1 to 3 are jointly and severally liable and third respondent insurance company held liable to make good the loss sustained to the insured. 6. Aggrieved by the Award passed by the Tribunal, claimant approaches this Court on various grounds stated in the memorandum of appeal. 7. Learned Standing Counsel Sri.P.M.M.Najeeb Khan appeared on behalf of the sole respondent, insurer. Lower court records were called for. Both sides were heard. 8. The accident and liability is not in dispute and the only challenge is with regard to the quantum of compensation awarded by the Tribunal. 9. According to the learned counsel for the claimant, the claimant was a Shuttering Foreman in a company and claimed monthly income of Rs.10,000/-. Ext.A9 certificate also was produced to prove the income. But the Tribunal taken the MACA No.899/2013 5 income notionally as Rs.3,000/-, which, according to her, is very low. She would also contend that 4% disability certified by the Medical Board is without taking into account the fracture to C2 vertebra and further that due to the accident and resultant injuries the claimant is unable to go for any work and she seeks for enhancement of percentage of functional disability also. 10. Learned counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded under various heads and no interference is called for in this appeal. 11. Ext.A9 experience certificate issued from Ram Fith Associates (Engineers and Contractors) certifying that the claimant is working as a Shuttering Foreman and draws Rs.500/- daily has been produced. However the person who issued the certificate has not been examined and Ext.A9 is not proved. 12. In Ramachandrappa v. Manager, Royal Sundaram MACA No.899/2013 6 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. 13. In Syed Sadiq Etc. v. Divisional Manager, United MACA No.899/2013 7 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. 14. In this case the accident occurred on 08.01.2010. The claimant was 26 year old. As per the settled principles in the decisions cited above, Rs.7,500/- can reasonably be taken notionally as the monthly income of the claimant. 15. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt MACA No.899/2013 8 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 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 MACA No.899/2013 9 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. 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 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 MACA No.899/2013 10 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 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 the present case, Ext.A4 wound certificate has MACA No.899/2013 11 been produced from the side of the claimant, which would show that claimant sustained lacerated wound left temporal region, punctured wound extending deep to brain causing bleeding from nose and also fracture big toe left foot. Ext.A6 is the discharge summary issued from MIMS Hospital, in which it has been noted that the claimant had suffered traumatic right ganglionic haematoma, fracture mandible, right maxilla and right zygoma and avulsion left pinna. The learned counsel would also contend that the Tribunal omitted to note the injury sustained to vertebra as borne out from Ext.A6. The Medical Board also omitted to note the fracture sustained to the claimant to C2 vertebra. On perusing Ext.A6 it would go to show that the claimant had sustained intracerebral haematoma right gangliocapsular region extending to temporal lobe with multiple contusion involving midbrain and bilateral temporal lobes. Intracerebral oedema present with very thin SDH involving right parietal convexity, fracture involving C2 vertebra, right maxilla and zygoma. X-ray cervical spine (AP & Lat) also confirmed fracture of C2 pedicle and MACA No.899/2013 12 mandible. Operation was also done on 13/01/2010. So the contention of the learned counsel that fracture involving C2 vertebra was not seen taken note of by the Tribunal. Ext.C1 disability certificate issued by the Medical Board also says only about lacerated wound left temporal region, traumatic right ganglionic haematoma, fracture mandible, right maxilla and right zygoma and avulsion left pinna. Nothing is stated with respect to fracture C2 vertebra in Ext.C1 certificate also. So without taking note of fracture to C2 vertebra 4% permanent disability has been assessed by the Medical Board. An amount of Rs.1,17,522/- has been awarded towards medical expenses, based on the accepted bills produced by the claimant. It would show the gravity of the injuries and the treatment undergone by him. 19. Claimant is alleged to be a Shuttering Foreman. So the injuries to the C2 vertebra and the other injuries sustained by him would affect his earning capacity to a certain extent. So functional disability of the claimant can reasonably be fixed at 10%. MACA No.899/2013 13 20. Claimant had undergone 13 days inpatient treatment and also undergone surgery in connection with the accident. Hence, loss of earnings for four months can be granted instead of three months awarded by the Tribunal. Then the amount would come to Rs.30,000/- [7,500x4]. Deducting the amount already awarded, balance would be **Rs.21,000** /- [30,000- 9,000]. 21. Towards bystander expenses, Tribunal awarded Rs.1,300/-. He had undergone 13 days inpatient treatment. The accident was in the year 2010. So Rs.250/- per day can be taken towards the bystander expenses. Then the amount would come to Rs.3,250/-. Deducting the amount already awarded, the balance would be **Rs.1,950/-** [3250-1,300]. Towards extra nourishment, Tribunal awarded Rs.1,300/-. In view of the nature of injuries and period of treatment, Rs.2,500/- can be granted towards extra nourishment. So the balance would be **Rs.1,200** /- [2,500-1,300]. Towards pain and suffering, Tribunal already awarded Rs.10,000/-. In view of the nature of injuries and the period of treatment undergone by 14 MACA No.899/2013 the claimant, including surgery, an amount of Rs.15,000/- is awarded towards pain and suffering. Deducting the amount already awarded, the balance would be **Rs.5,000/** - [15,00010,000]. Under the head of loss of amenities and conveniences, Tribunal awarded only Rs.3,000/-. Taking into account the nature of injuries and other factors, it can be enhanced to Rs.10,000/-. Then, enhanced amount would be **Rs.7,000/-** [10,000 – 3,000]. 22. As per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] followed by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the suitable multiplier would be '17', since the claimant was 26 years old. So the compensation towards permanent disability would be Rs.1,53,000/- [7,500x12x17x 10/100]. Deducting the amount already awarded, the balance would be **Rs.1,28,520/-** [1,53,000-24,480]. Hence, in total, the claimant is entitled to get Rs.1,64,670/- [21,000+1,950+ 1,200+5,000+7,000+1,28,520], which is rounded off to Rs.1,64,700/-. MACA No.899/2013 15 23. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.1,64,700/** - (Rupees one lakh sixty four thousand seven hundred only), which will carry interest at the rate of **7.5%** per annum (excluding 155 days delay caused in filing the appeal) from the date of petition till realisation. **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. 24. 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/**