Sunil Kumar S.K. v. Sunil (S/o Damodaran); Manoj M; Branch Manager, National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943 MACA NO. 1549 OF 2013** **AGAINST THE AWARD DATED 23.04.2013 IN OPMV 369/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA / I ADDL. M.A.C.T.** ## **APPELLANT/PETITIONER:** **SUNIL KUMAR.S.K, SUNIL BHAVAN HOUSE, KUNAMKARA P.O, PERUNADU VILLAGE, RANNY TALUK, PIN-689 711. BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI SRI.SABU I.KOSHY** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** - **1 SUNIL, S/O.DAMODARAN, SUMESH BHAVANAM, ADICHIPUZHA P.O, PERUNADU VILLAGE, RANNY TALUK, PIN 689 711.** - **2 MANOJ M, S/O.MONI, KALLUMALAKUNNEL HOUSE, KOZHIKANAM P.O, ELAPPARA VILLAGE, IDUKKI DISTRICT.** - **3 THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD, BRANCH OFFICE, THODPUZHA P.O, PIN 685 584.** ## **SMT. DEEPA GEORGE-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1549 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.369/2005 on the file of Motor Accidents Claims Tribunal, Pathanamthitta. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant/claimant in a motor accident occurred on 30.01.2005, while he was travelling in a Jeep bearing Registration No.KL-7R-7270 through Pampa-Vadasserikkara Public Road. It is alleged that the accident happened due to the rash and negligent driving of the jeep by the driver. Total compensation of Rs.1,24,500/- has been claimed. 2. Before the Tribunal, respondents 1 and 2 were set exparte and the 3[rd] respondent insurer filed written statement admitting the insurance coverage with respect to the offending vehicle. 3. Exts. A1 to A9 were marked from the side of the appellant/claimant. There was no oral evidence from either side. M.A.C.A No. 1549 of 2013 **3** On evaluating the pleading as well as documents produced from the side of the appellant/claimant, the Tribunal awarded a total compensation of Rs.28,800/- under various heads together with interest at the rate of 7.5% per annum. Tribunal found that 1[st] respondent is responsible for the accident, hence the 3[rd] respondent is held liable to indemnify the 2[nd] respondent insured. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant (hereinafter be referred as claimant) approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Notice as against respondent 1 and 2 is dispensed with at the risk of the appellant. Service is not complete as against 1[st] respondent. Adv.Deepa George, appeared on behalf of the 3[rd] respondent. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the appellant, claimant sustained fracture of occipital bone. Discharge certificate also show that he was admitted on 31.01.2005. Though Ext.A8 M.A.C.A No. 1549 of 2013 **4** disability certificate was produced certifying 8% disability, the Tribunal did not accept the disability certificate and no amount was awarded under the head of disability. Hence he seeks for enhancement of compensation on all heads. 7. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 8. According to the learned counsel for the claimant, the claimant was a Coolie having monthly income of Rs.5,000/- but the Tribunal taken his monthly income as Rs.3,500/- which is very low. Admittedly the claimant could not adduce any evidence to prove the actual income of the claimant. 9. In **Ramachandrappa v. Manager, Royal Sundaram 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 M.A.C.A No. 1549 of 2013 **5** 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. 10. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , 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 unorganized sector doing his own business cannot M.A.C.A No. 1549 of 2013 **6** 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. 11. In this case, the accident was in the year 2005. In view of the facts and circumstances, and the dictum laid down in above decisions, I am of the view that income of the claimant can be taken as **Rs.5,000/-** per month. 12. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the apex court has elaborately discussed the general principle relating to compensation in injury cases. 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 damages M.A.C.A No. 1549 of 2013 **7** have been discussed in detail. 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. 13. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (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). 14. 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 M.A.C.A No. 1549 of 2013 **8** thereof on the future life of the claimant. 15. In this case, claimant produced Ext.A6 discharge certificate which would show that he was admitted in Medical College Hospital, Kottayam on 31.01.2005. CT scan noted fracture of occipital bone. Ext.A8 disability certificate issued by Dr. Laji J.Tharakan, Junior Consultant Orthopedics attached to General Hospital, Pathanamthitta certified 8% permanent disability. The Tribunal could not accept the disability certificate for the reason that the the Doctor who issued Ext.A8 has not been examined to prove the contents of Ext.A8. **In Raj Kumar v.** (supra), the Apex Court categorically held that if the Tribunal is not satisfied with the medical evidence adduced from the side of the claimant, the Tribunal ought to have referred the claimant to a Medical Board for proper assessment, that has not been done, in this case. So Tribunal went wrong in unilaterally discarding the disability certificate in toto. So taking into account the nature of injuries involving vital part, I am of the view that permanent disability can be taken at 3%. 16. Suitable multiplier to be adopted as per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC** M.A.C.A No. 1549 of 2013 **9** **121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is ' 18 '. So, towards permanent disability, the claimant is entitled to get 5,000x12x18x3/100= **Rs.32,400/-.** 17. Tribunal awarded 3 months loss of earnings, that can be maintained. So, towards loss of earnings, the claimant is entitled to get Rs.15,000/- (5,000x3). Deducting the amount already awarded, the balance would be **Rs.4,500/-** (15,000-10,500) Towards pain and sufferings, the Tribunal already awarded Rs.10,000/- since he sustained fracture of occipital bone. An amount of Rs.15,000/- can be awarded towards pain and suffering. Deducting the amount already awarded, the balance would be **Rs.5,000/-** (15,000-10,000). Towards loss of amenities, Rs.10,000/can be awarded. Deducting the amount already awarded, the balance would be **Rs.6,000/-** (10,000-4,000). Towards extra nourishment, an amount of Rs.500/- awarded by the Tribunal is very low. In view of the facts and circumstances, Rs.1,500/- is further awarded under the head of extra nourishment. Deducting the amount already awarded, the balance would be **Rs.1,000/-** M.A.C.A No. 1549 of 2013 **10** (1,500-500). Hence, the claimant is entitled to get enhanced compensation of **Rs.48,900/-** (Forty eight thousand nine hundred only) (32,400 **+** 5,000+6,000+1,000+4,500). 18. In the result, claimant is allowed to realize enhanced compensation of **Rs.48,900/-** in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced 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/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 with copy to the Standing Counsel for 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** rps/