Sunitha.K.S v. K.H. Aliyar; Pinto s/o Prakasan; The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943** **MACA NO. 1912 OF 2013** **AGAINST THE AWARD DATED 01.10.2012 IN OPMV 674/2006 ON THE FILED** **OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **SUNITHA.K.S, W/O SUBHASH AGED 43 YEARS RESIDING AT IKKARATH HOUSE, KOPRAKALAM, THRISSUR BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD** ## **RESPONDENT/RESPONDENTS:** **1 K.H.ALIYAR RESIDING AT KAROTHUKUZHY HOUSE, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN. 683 542. 2 PINTO S/O.PRAKASAN RESIDING AT VAZHAKKULATHU HOUSE, THRITHALLUR VATNAPPILLY, THRISSUR DISTRICT, PIN.680 619. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED S.S.N.SHOPPING COMPLEX, TEMPLE ROAD, NATTIKA, P.O.TRIPRAYAR, THRISSUR DISTRICT, PIN. 680 567. BY ADV T.C.SOWMIAVATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1912 of 2013 **2** ## **M.R.ANITHA, J.** ## **----------------------------------------M.A.C.A No. 1912 of 2013 ----------------------------------------** Dated this the 21[st] day of January, 2022 ## **JUDGMENT** The appellant is the claimant in O.P.M.V No.674/2006 on the file of Motor Accidents Claims Tribunal, Thrissur. The claim petition was 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 13.11.2005 at about 03.15 p.m. The appellant claimed a total compensation of Rs.1,30,000/- under various heads before the Tribunal. 2. It is alleged that while the claimant was travelling in an autorickshaw bearing Registration No.KL-8/R 1880 along with deseased Vasantha through Kodungallur-Guruvayur and reached at Thalikulam, car bearing Registration No.KL-17/A 6350 driven by the 2[nd] respondent hit against the autorickshaw, resulting in grievous injuries to the appellant. It is alleged that the accident M.A.C.A No. 1912 of 2013 **3** happened due to the rash and negligent driving of the 2[nd] respondent. The 3[rd] respondent is the insurance company. 3. This case was tried along with other cases and a common award was passed by the Tribunal. Before the Tribunal, the respondents 1 and 2 remained ex parte and the 3[rd] respondent filed written statement admitting the insurance coverage with respect to the offending vehicle. The compensation claimed under various heads are disputed since it is highly excessive and exorbitant. Contributory negligence from the part of the driver of the autorickshaw is also raised. 4. Exts.A23 to A28 were marked from the side of the appellant/claimant in this case. There is no oral evidence from either side. 5. After evaluating documents and pleadings, the Tribunal awarded a total compensation of Rs. 1,00,200/-, under various heads, together with interest at the rate of 8% per annum from the date of petition, ie., 19.04.2006 till the date of realization. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant/appellant (hereinafter be M.A.C.A No. 1912 of 2013 **4** referred as the claimant) approaches this Court in appeal for the various grounds stated in the memorandum of appeal. T.C.Sowmyavathy appeared on behalf of the 3[rd] respondent insurer. Since the 3[rd] respondent admitted the insurance coverage, notice to respondents 1 and 2 dispensed with at the risk of the claimant. Lower court records were called for and perused. Heard on both sides. 7. The incident and finding of negligence on the part of the 2[nd ] respondent, the driver of the car is not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. 8. According to the learned counsel, claimant is a house wife aged 36 years at the time of accident on 13.11.2004. The Tribunal fixed the monthly income of the injured notionally as Rs.3,000/- which is very low. It is also contended by the learned counsel that though Ext.A6 disability certificate certifying 8% of whole body disability has been propduced, the Tribunal taken only 4% disability. That is too low, in view of the serious nature of injuries sustained by the claimant. Claimant further disputes the M.A.C.A No. 1912 of 2013 **5** loss of earnings granted only for 3 months. No amount was awarded towards damages to clothing. The amount awarded towards pain and suffering is also very low. 9. The learned 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 at the instance of this court in this appeal. 10. It is not in dispute that the claimant was a home maker. The accident occurred in November, 2005. 11. 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 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 M.A.C.A No. 1912 of 2013 **6** 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. 12. 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 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 M.A.C.A No. 1912 of 2013 **7** in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 13. Taking into account the fact that the accident was occurred in the year 2005 and the claimant was 36 years old home maker. I find it just and proper to fix her income notionally as Rs.5,000/- per month. 14. Next is with regard to the assessment of loss of earnings arrived at by the Tribunal. 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 have been discussed in detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, M.A.C.A No. 1912 of 2013 **8** 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 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). 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 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 this case, the wound certificate shows that she suffered fracture on right radius, hematoma on forhead, contusion M.A.C.A No. 1912 of 2013 **9** on right forearm, abrasion left leg. She was hospitalized for 18 days. The total medical expenses was Rs.40,967/-. That was fully granted by the Tribunal, which has been discussed in para 12 of the award passed by the Tribunal. The claimant was subjected to two major surgical operations. It has come out from Ext.A26 disability certificate that she was treated operatively by plate and screw fixation of the fracture along with other supportive measures. The implants have been removed later by a second operation on 03.04.2008. The disability certificate would state that she has following problems; 1. surgical scars over the volar aspect of the ( R ) distal forearm. 2. Deformity of the ( R ) distal forearm. 3. Pain and stiffness ( R ) wrist on strenuous activities. 4. Radiologically, malunited fracture ( R ) distal 3[rd] radius, no implants seen. 18. The Doctor concluded that She has 8% permanent physical whole body disability with respect to her injuries sustained in the accident. But the Tribunal accepted disability at 4% only. As rightly contended by the learned counsel M.A.C.A No. 1912 of 2013 **10** if at all the Tribunal was in variance with the disability certificate issued by the Doctor, the claimant ought to have been referred to a Medical Board. Without doing that the Tribunal is not justified in unilaterally fixing the disability at 4%. However, taking into the fact that the disability certificate is issued by the Doctor who treated the injured, I am of the view that permanent whole body disability can be taken as 6%. 19. The Tribunal awarded loss of earnings for a period of three months. Taking into account the gravity of the injury sustained by the claimant and further taking into account the factor that she was a home maker, loss of earnings for four months can be reasonably fixed. 20. Towards loss of earnings, the claimant is entitled to get Rs. **11,000/-** (5,000x4=20,000, 20,000-9,000=11,000/-). Towards future loss of learning, the claimant is entitled to get Rs.5,000x15x6x12/100=54,000, 54,000-21,600= **32,400/-** . In view of the nature of injuries sustained by the claimant, Rs.15,000/- is awarded towards pain and suffering. Deducting the amount already awarded, the balance would be Rs. **3,000/-** (15,000- M.A.C.A No. 1912 of 2013 **11** 12,000). Towards damage of clothing, no amount was granted by the Tribunal. The claimant is entitled to Rs. **500/-** on that account. Hence, the claimant is entitled to get an enhanced compensation of Rs. **46,900/-** (11,000+32,400+3,000+500). 21. In the result, claimant is allowed to realise enhanced compensation of Rs. **46,900/-** in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization excluding 225 days, the delay caused in filing this appeal. 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 a 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, within one month from the date of receipt of certified copy of this judgment. SD/- **M.R.ANITHA JUDGE** rps/