Sunny @ Joseph v. Abhilash P. Jacob and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 22ND DAY OF AUGUST 2017/15TH PHALGUNA, 1927** **MACA.No. 1345 of 2016 () -------------------------** **AGAINST THE AWARD IN OPMV 634/2010 OF THE COURT OF ADDL.DISTRICT AND SESSIONS COURT-IV/ADDL. MACT-II, THODUPUZHA DATED 06-03-2015** **APPELLANT(S):/PETITIONER ------------** **SUNNY @ JOSEPH S/O. THOMAS, AGED 53 YEARS, THENGANAKUNNEL HOUSE, PARAKKADAVU KARA, NELLIPPARA P.O. THANKAMONY VILLAGE, PIN-685 515.** **BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA SRI.K.J.JOSEMON** **RESPONDENT(S):/RESPONDENTS** **--------------** **1. ABHILASH P.JACOB S/O. JACOB, PALATHU HOUSE, NELLIPPARA P.O. , THANKAMONY VILLAGE, IDUKKI, PIN- 685 515 (DRIVER)** **2. VINESH** **S/O. CHACKO, PALATH HOUSE, KAMAKSHY P.O. IDUKKI DISTRICT, PIN- 685 515 (OWNER)** **3. UNIVERSAL SAMPO GENRAL INSURANCE CO. LTD. REPERSENTED BY ITS MANAGER, REGISTERED OFFICE, 201-208 CRYSTAL PLAZA, OPPOSITE INFINITY MALL, LINK ROAD, ANDHERI (WEST), MUMBAI, PIN-400 058.** **R3 BY ADV. DR.ELIZABETH VARKEY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jg-2/9** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ----------------------------------------------M.A.C.A.No.1345 of 2016 ----------------------------------------------Dated this the 22[nd] day of August, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J** . This appeal arises out of the award passed by the Additional Motor Accidents Claims Tribunal-II, Thodupuzha, dated 6.3.2015 in O.P.(MV)No.634/2010, a claim petition filed by the appellant/ claimant under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident which occurred on 16.3.2010, while he was travelling in an autorickshaw bearing registration No.KL-6/E-4431 driven and owned by respondents 1 and 2 respectively and insured with the 3[rd] respondent. At the place of accident the autorickshaw hit on a jackfruit tree and he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the autorickshaw by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of `5,00,000/under different heads. 2. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash MACA1345/16 -2- and negligent driving of the autorickshaw by the 1[st] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Under different heads, the Tribunal awarded a total compensation of `7,74,060/- and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 9% per annum from the date of claim petition till date of realisation, with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. Heard learned counsel for the appellant/claimant and also learned counsel for the 3[rd] respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages', which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss MACA1345/16 -3- of limbs or life can hardly be weighed in golden scales. But at the same time, it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 8. In **Jasbir Kaur's case (supra)** , after referring to the judgment in **Helen C. Rebello v. Maharashtra State Road Transport Corporation [(1999) 1 SCC 90]** the Apex Court held further that, the Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just' compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just' compensation which is the pivotal consideration. Though by use of the expression 'which appears to it to be just' a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of MACA1345/16 -4- whims, wild guesses and arbitrariness. The expression 'just' denotes equitability, fairness, reasonableness, and non-arbitrary. If it is not so, it cannot be just. 9. In the instant case, the accident occurred on 16.3.2010 while the appellant was travelling as a passenger in an autorickshaw driven by the 1[st] respondent driver. At the time of accident the appellant was aged 47 years and he had claimed a monthly income of `7,500/- as an agriculturist. However, no reliable materials were produced before the Tribunal in order to prove his monthly income. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal took the monthly income, notionally, as `4,500/-. ## 10. In **Ramchandrappa v. Manager, Royal Sundaram Aliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court re-fixed the monthly income of a cooli, who met with a motor accident in the year 2004, notionally at `4,500/-. In the instant case, the accident is of the year 2010 and at the time of accident the appellant was an able bodied person aged 47 years. Considering the economic conditions prevailing as on the date of accident, we find no reason to disbelieve the case of the appellant that he was earning a monthly income of `7,500/- as on the date of accident. Therefore, we deem it appropriate to re-fix his monthly MACA1345/16 -5- income notionally at `7,500/- for the purpose of assessing compensation under different heads. 11. The injuries sustained by the appellant, as borne out from medical records, reads thus; “Type C fracture pelvis with bladder injury and urethral distraction; Closed fracture left femur; Crescent fracture to SI joint (sacroiliac joint); Lt. Subtrochanteric fracture with morel lavallee lesion left thigh.” Due to the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 27 days, from 16.3.2010 to 13.4.2010. He had also attended 16 reviews. In Ext.A11 disability certificate, the Standing Disability Assessment Board at Medical College Hospital, Kottayam assessed 36.5% permanent whole body disability. The disabilities noted in Ext.A11 disability certificate read thus; “Sequelae of pelvic fracture with femur fracture- Orthopedic disability of 11.5% - Whole body vide McBride – (Ortho - 11.5% + Urology - 25%)” 12. The compensation awarded by the Tribunal under different heads are as follows ; |Sl.<br>No.|Head of claim|Amount claimed<br>(in Rupees)|Amount awarded<br>(in Rupees)| |---|---|---|---| |1|Loss of earning (Total)|90000|54000| |2|Medical and miscellaneous<br>expenses|2,25,000|1,39,388| MACA1345/16 -6- |Sl.<br>No.|Head of claim|Amount claimed<br>(in Rupees)|Amount awarded<br>(in Rupees)| |---|---|---|---| |3|Future treatment|1,00,000|50000| |4|Bystander expenses|15000|12000| |5|Transportation expenses|35000|40000| |6|Extra nourishment|10000|15000| |7|Damage to clothing etc.|500|500| |8|Pain and suffering|50000|1,00,000| |9|Loss of amenities and<br>conveniences|25000|50000| |10|Loss/reduction in earning<br>capacity|50000|3,13,170| ||TOTAL|Claim limited to<br>`5,00,000/-|`7,74,058/- rounded<br>to`7,74,060/-| 13. Towards 'loss of earning', the Tribunal awarded a sum of `54,000/- (at the rate of `4,500/- for a period of 12 months). Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, we find that the Tribunal is justified in awarding 'loss of earning' for a period of 12 months. Since we have already re-fixed the monthly income of the appellant, notionally at `7,500/-, the compensation under this head is reworked as `90,000/- (7,500x12), resulting an additional compensation of ` **36,000/-** . 14. Taking the notional monthly income of the appellant as `4,500/-, applying the multiplier of '13' applicable to persons in the age group of 46 to 50 years, and the percentage of disability as 36.5%, as certified in Ext.A11, the Tribunal awarded a sum of MACA1345/16 -7- `3,13,170/- under the head 'loss or reduction in earning capacity'. Since we have already re-fixed the monthly income of the appellant notionally at `7,500/-, the compensation under this head is reworked as `4,27,050/- (7,500x12x13x36.5/100), resulting an additional compensation of ` **1,13,880/-** . 15. In **Paul Varghese v. Shanveen [2016 (3) KLT 961]** , a Division Bench of this Court, in which one of us [Anil K. Narendran, J] was a member, held that a victim in a motor accident, who sustained injuries resulting disabilities has to be adequately compensated for the incidental expenses, including expenses towards future treatment, so as to enable him to recover from the disabilities caused by the tort feasor. However, while awarding just and reasonable compensation under the head future treatment expenses, considering the peculiar nature of the injuries sustained and the attendant circumstances, the Tribunal shall award interest for the said amount only from the date of award and not from the date of claim petition. 16. In the instant case, towards 'future treatment', the Tribunal awarded a sum of `50,000/-. The appellant has not chosen to mount the box. He has also not chosen to prove the treatment records by examining the doctor concerned. However, considering the nature of injuries sustained, as noted in the medical records, MACA1345/16 -8- and the disability that has arisen therefrom, as noted in Ext.A11 disability certificate, the appellant can be awarded a sum of `10,000/- under the head 'future treatment', which would represent just and reasonable compensation under that head. Accordingly, the compensation of `50,000/- awarded by the Tribunal under the head 'future treatment' is scaled down to `10,000/-, which would result in deduction of a sum of ` **40,000/-** from the additional compensation awarded in this appeal. The aforesaid compensation of `10,000/will carry interest at the rate of 9% per annum (the rate of interest in the impugned award) only from the date of award till realisation. 17. Towards 'bystander expenses', the Tribunal awarded a sum of `12,000/-, at the rate of `200/- for 60 days of hospitalisation. Since the accident is of the year 2010, the appellant is entitled for compensation under this head, at the rate of `250/per day for 60 days of hospitalisation, requiring re-fixation of the amount payable as `15,000/- (250x60). However, we find that the appellant has already been awarded a sum of `15,000/- under the head 'extra nourishment', as against his entitlement for a sum of `9,000/- (150x60) under that head. Therefore, the appellant is not entitled for payment of any additional compensation in this appeal, on account of re-fixation compensation payable under the head 'bystander expenses'. MACA1345/16 -9- 18. Towards 'transportation expenses', the Tribunal awarded a sum of `40,000/-. The appellant has not chosen prove Ext.A9 series Taxi Vouchers for `64,260/-. However, as discernible from medical records, he had attended 16 reviews. In such circumstances, the compensation of `40,000/- awarded by the Tribunal under the head 'transportation expenses' represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards 'pain and suffering', the Tribunal awarded a sum of `1,00,000/-. The Tribunal awarded a further sum of `50,000/- under the head 'loss of amenities'. In the impugned award, the Tribunal has given no reasons for awarding higher amounts under those heads. Considering the magnitude of the ordeal undergone by the appellant on account of Type C fracture of pelvis with bladder injury and urethral distraction; crescent fracture to SI joint (sacroiliac joint); etc., and also the nature of treatment undergone, i.e., exploratory laparotomy primary urethral realignment, repair of bladder rupture, pubic symphysis plating; etc. he can be awarded a sum of `75,000/- under the head 'pain and suffering', which would represent just and reasonable compensation under that head, as against `1,00,000/- awarded by the Tribunal. However, we find that, under the head 'loss of amenities', the MACA1345/16 -10- Tribunal awarded only a sum of `50,000/-. In Ext.A11 disability certificate, the Standing Disability Assessment Board at Medical College Hospital, Kottayam assessed 36.5% permanent whole body disability, out of which 25% disability is on account of urethral injuries occurred as a consequence of pelvic fracture. The said disabilities would certainly affect adversely the enjoyment of marital life by the appellant. Considering the nature of disabilities and other aspects, the appellant can be awarded a sum of `75,000/- under the head 'loss of amenities', which would represent just and reasonable compensation under that head, as against `50,000/awarded by the Tribunal., resulting an additional compensation of `25,000/-. The excess amount of `25,000/-, on account of scaling down of the compensation awarded by the Tribunal under the head 'pain and suffering', is adjusted towards the additional compensation of `25,000/- payable under the head 'loss of amenities' and as such, the appellant is not entitled for payment of any further amount on account of re-fixation of compensation under these heads. 20. In the result, the appellant/claimant will be entitled for an additional compensation of ` **1,09,880/-** (Rupees one lakh nine thousand eight hundred and eighty only) [(36,000+ 1,13,880) - 40,000] in this appeal, which will carry interest at the rate of 8% MACA1345/16 -11- per annum from the date of the petition till date of realisation, excluding the delay of 266 days in filing this appeal, which was condoned by the order of this Court dated 01.08.2016 in C.M.Appl.No.1587 of 2016. The entitlement of the appellant/ claimant for interest on the compensation payable under the head 'future treatment' shall be only from the date of award till realisation, in terms of paragraph 16 hereinbefore. Needless to say that the appellant/claimant is liable to pay balance court fee for the enhanced compensation awarded in this appeal in excess of the total compensation claimed before by the Tribunal. 21. Since the insurance coverage of the vehicle is not in dispute, the third respondent insurer shall deposit the amount payable before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. In the result, this appeal is disposed of as above. No order as to costs. **C.T. RAVIKUMAR JUDGE** **ANIL K. NARENDRAN JUDGE** ami/