Sunny v. Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 26TH DAY OF JULY 2017/4TH SRAVANA, 1939** **MACA.No. 1428 of 2011 ( ) --------------------------** ## **AGAINST THE AWARD IN OPMV 769/2005 of M.A.C.T., PERUMBAVOOR DATED 25-03-2011** ## **APPELLANT (PETITIONER IN O.P.(M.V) NO.769/2005)** **----------------------** **SUNNY, AGED 40 YEARS S/O VARGHESE, PUTHENVEETTIL HOUSE PALAKKARA, ANAGAMALY,** ## **BY ADV. SMT.ANUPAMA JOHNY** **RESPONDENT/ RESPONDENT NO.3 IN O.P (M.V) NO.769/2005:** **---------------------------** **THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, IST FLOOR, KOLLOOKARAN SHOPPING COMPLEX, ANGAMALY-683572** **BY ADV. SRI.M.JACOB MURICKAN SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2017, ALONG WITH MACA. 1610/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sab** ## **C.T.RAVIKUMAR, & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A NO. 1428 of 2011 & M.A.C.A NO. 1610 of 2011 --------------------------------------Dated this the 26[th] day of July, 2017** ## **JUDGMENT** ## **ANIL K.NARENDRAN.J.** M.A.C.A No. 1428 of 2011 arises out of the award dated 21.3.2011 of the Motor Accidents Claims Tribunal, Perumbavoor in O.P (MV) No.769 of 2005, 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 13.12.2004 while he was walking on the side of a public road. At the place of accident, he was knocked down by a mini lorry bearing registration number KL-7/B-7047 driven and owned by respondents 1 and 2 before the Tribunal and insured with the respondent herein (3rd respondent before the Tribunal). The said lorry knocked down the appellant/claimant after hitting a Maruthi Omini Van bearing registration No.KL-7/AK-1187 owned and driven by respondents 4 and 6 before the Tribunal and insured with the fifth respondent before the Tribunal. Alleging ## **M.A.C.A NO. 1428 of 2011 &** **M.A.C.A NO. 1610 of 2011 2** that the accident occurred due to the rash and negligent driving of the first respondent driver of the lorry, claim petition was filed before the Tribunal claiming a total compensation of Rs.6,00,000/- under different heads. 2. MACA No.1610 of 2011 arises out of the award dated 21.3.2011 of the Tribunal in O.P (MV) No.581 of 2005, an application 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 the very same motor accident. At the time of accident, he was riding a bicycle, which was hit by the aforesaid lorry. Alleging that the accident occurred due to the rash and negligent driving of the lorry by its driver, claim petition was filed claiming a total compensation of Rs.2,00,000/-, under different heads. 3. Before the Tribunal, the claim petitions, namely, O.P (M.V) Nos.769 of 2005 and 581 of 2005 were tried along with connected matters arising out of the very same accident. On the side of the claimants Exts.A1 to A27 were marked. The appellant/claimant in MACA No.1428 of 2011 was examined as PW1 and one K.J Punnoose was examined as RW1. 4. After considering the materials and on evidence on record, the Tribunal arrived at a conclusion that the accident ## **M.A.C.A NO. 1428 of 2011 &** **M.A.C.A NO. 1610 of 2011 3** occurred due to the rash and negligent driving of the mini lorry by its driver. Since the said vehicle was covered by a valid insurance policy, the respondent insurer (3rd respondent before the Tribunal) was held liable to indemnify the owner of the said vehicle. 5. In O.P (M V) No.769/05, the Tribunal awarded a total compensation of Rs.1,71,494/- under different heads and directed the insurer of the lorry to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of petition till realisation. 6. Similarly in O.P.(M V) No.581/05, the Tribunal awarded a total compensation of Rs.50,793/- and directed the insurer of the lorry to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of petition till realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads the appellants/claimants are before this Court in these appeals. 8. We heard the arguments of the learned counsel for the appellants/claimants in both the appeals and also the learned counsel for the respondent insurer. 9. The sole issue that arises for consideration in these ## **M.A.C.A NO. 1428 of 2011 &** **M.A.C.A NO. 1610 of 2011 4** appeals is as to whether the appellants/claimants are entitled for enhancement of compensation awarded by the Tribunal under different heads. ## **M.A.C.A No. 1428 of 2011:-** 10. The accident is of the year 2004 and at the time of the accident the appellant/claimant was aged 34 years. He claimed a monthly income of Rs.6,000/- as a lottery seller. Other than the oral testimony of the appellant/claimant as PW1, no reliable materials were placed before the Tribunal in order to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed his monthly income notionally at Rs.2,500/- for the purpose of assessing compensation under different heads. 11. In **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court fixed notionally the monthly income of a coolie who met with a motor accident in the year 2004 as Rs.4,500/-. In the light of the said judgment of the Apex Court, we deem it appropriate to re fix the monthly income of the appellant/claimant notionally at Rs. 4,500/- for the purpose of assessing compensation under different heads. 12. The injuries sustained by the appellant/claimant, as **M.A.C.A NO. 1610 of 2011 5** **M.A.C.A NO. 1428 of 2011 &** borne out from Ext.A4 accident register cum wound certificate, reads as follows: 1. Tenderness over left scapula. 2. Abrasion over face, neck, chest, left thigh, both feet, right wrist and hand. 3. Tenderness of the pelvis, abdomen and chest. 4. 8 cm long laceration in the perianal area. The injuries noted in Ext.A4 wound certificate is reiterated in Ext.A7 discharge summary as well. The treatment undergone by the appellant/claimant, as borne out from Ext.A7 discharge summary, reads as follows: “Suprapubic cystostomy done by Urology department. Loop colostomy + debridement and approximation of perineal tear done under G.A. Orthopaedic consultation given for pelvis fracture and treated by Orthopaedic department. The final diagnosis is extensive perineal tear. Fracture left superior and inferior pubic ramus with left sacroiliac joint dislocation. Right inferior public ramus fracture. Fracture left scapular. Fracture left iliac using and urethral injury” Exts.A7, A8 and A9 discharge summaries would show that as a result of the injuries sustained by the appellant/claimant, he had undergone inpatient treatment for a total period of 75 days, in three different spells. 13. The compensation awarded by the Tribunal under different heads reads thus: Rupees Loss of earnings 15,000/- **6** ## **M.A.C.A NO. 1428 of 2011 &** **M.A.C.A NO. 1610 of 2011** Partial loss of earnings NIL Transport to Hospital 1,200/Extra nourishment 3,000/Damage to clothings etc. 200/Attendant charges 7,500/Medical expenses 84,594/Pain and suffering 35,000/Loss of amenities etc. 25,000/Loss of earning power NIL Future treatment expenses NIL Permanent disability NIL ======== 1,71,494/- 14. Towards 'damage to clothing', the Tribunal awarded a sum of Rs.200/-. Considering the fact that the accident was of the year 2004, we deem it appropriate to re-fix the compensation under this head as Rs.750/-, resulting an additional compensation of Rs. **550** /-. 15. Towards the 'loss of earnings', the Tribunal awarded a sum of Rs.15,000/- at the rate of Rs.2500 for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, the loss of earnings awarded by the Tribunal for a period of 6 months warrants no enhancement in this appeal. However, since we have already re-fixed the monthly income of the appellant/claimant notionally at Rs.4,500/-, the compensation under the head loss of earning is reworked as Rs.27,000/- (4500x6), resulting an additional compensation of **Rs.12,000/-.** **M.A.C.A NO. 1428 of 2011 & M.A.C.A NO. 1610 of 2011 7** 16. Towards “transportation to hospital” the Tribunal awarded a sum of Rs.1,200/-. As borne out from Exts.A7 to A9 discharge summaries, the appellant/claimant had undergone inpatient treatment in three different spells. In such circumstances, considering the fact that the accident is of the year 2004, we deem it appropriate of refix the compensation under this head as Rs.3,000/- resulting an additional compensation of **Rs.1,800/-** 17. Towards 'extra nourishment', the Tribunal awarded a sum of Rs.3,000/- and a further sum of Rs.7,500/- was awarded under the head 'attendant charges'. Since the accident is of the year 2004, the appellant/claimant is entitled for extra nourishment at the rate of Rs.100 per day for 75 days of inpatient treatment. Similarly, the compensation under the head 'attendant charges' has to be re fixed at the rate of Rs.150/- per day. On reworking the compensation under the head 'extra nourishment' will come to Rs.7,500/ (75x100), resulting an additional compensation of **Rs.4,500/-** . Similarly, the compensation under the head 'attendant charges' is reworked as Rs.11,250/- (75x150), resulting an additional compensation of **Rs.3,750/-** 18. Towards 'Medical expenses' the Tribunal awarded a **M.A.C.A NO. 1610 of 2011 8** ## **M.A.C.A NO. 1428 of 2011 &** sum of Rs. 84,594/-, covered by Ext.A12 series of medical bills. The compensation awarded under this head represents a just and reasonable compensation, which warrants no enhancement in this appeal. 19. Towards 'pain and suffering' and 'loss of amenities' the Tribunal awarded a sum of Rs.35,000/- and 25,000/respectively. Considering the nature of injury sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head 'pain and suffering' cannot be termed as one on the lower side. Even in the absence of any disability certificate, the Tribunal awarded a sum of Rs.25,000/- under the head 'loss of amenities'. The said amount cannot also be termed as one on the lower side, warranting enhancement in this appeal. 20. In the result, the appellant/claimant in M.A.C.A No.1428/2011 will be entitled for an additional compensation of Rs. **22,600** /- (12000+1800+4500+550+3750) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. 21. Since the insurance coverage of the offending vehicle is not in dispute, the 3[rd] respondent insurer shall ## **M.A.C.A NO. 1428 of 2011 &** **M.A.C.A NO. 1610 of 2011 9** deposit the said amount before the Tribunal within a period of one month from the date of a certified copy of this judgment. No order as to costs. ## **M.A.C.A No. 1610 of 2011:-** 22. In the instant case as well, the accident is of the year 2004. At the time of accident, the appellant/claimant was aged 48 years, who was earning a monthly income of Rs.6,067/- as evident from Ext.A16 salary certificate, as Railway Gate Man at Irinjalakkuda. The injuries sustained by the appellant/ claimant, as borne out from Ext.A13 accident register cum wound certificate reads thus: 1. Tenderness over cervical spine 2. 10c 3cm Lacerated wound over the vertex 3. Lacerated wounds over the forehead 4. Minor abrasions over knee and extremities Ext.A14 discharge summary would show that he had undergone inpatient treatment for a period of 8 days and the nature of treatment noted in Ext.A14 discharge summary reads thus: “He was treated conservatively with antibiotics, neurovitamines, physiotherapy and other supportive care. His neurological conditions improved gradually. Sutures were removed on 23.12.2004. He had cervical collar at all times and restricted neck movements. Right shoulder physiotherapy was **M.A.C.A NO. 1428 of 2011 &** **M.A.C.A NO. 1610 of 2011** **10** advised.” 23. The compensation awarded by the Tribunal under different heads reads thus: Rupees Loss of earnings No salary loss partial loss of earnings NIL Transport to Hospital 400/Extra nourishment 1,750/Damage to clothings etc. 200/Attendant charges 800/Medical expenses 21,643/Pain and suffering 16,000/Loss of amenities, etc. 10,000/Permanent disability NIL ====== 50,793/- 24. Towards the 'loss of earning', though the appellant claimed a sum of Rs.28,000/-, no amount was awarded by the Tribunal, on the ground that there is no loss of salary. Ext.A16 Salary Certificate produced by the appellant/claimant would show that he was under sick leave from 13.12.2004 to 27.3.2005. The Tribunal rejected the claim made by the appellant towards the loss of earning, on the ground that since he had availed sick leave, he has not sustained any monetary loss. We find no reason to sustain the said reasoning of the Tribunal. But for the accident and the treatment for the resultant injuries, the appellant/claimant could have utilised those sick leaves for some illness. In such circumstances, **M.A.C.A NO. 1428 of 2011 &** **M.A.C.A NO. 1610 of 2011 11** considering the nature of injuries sustained and the treatment, the appellant/claimant had undergone, as borne out from medical records, we deem it appropriate to grant loss of earnings for a period of three months taking the monthly income of the appellant/claimant as Rs.6,067/- as certified in Ext.A16 salary certificate. Accordingly, the compensation under this head is assessed at **Rs.18,201/-** (6067x3). 25. Towards the transportation to hospital, the Tribunal awarded a sum of Rs.400/-. Considering the fact that the accident of the year 2004, and also the nature of injuries sustained, we deem it appropriate to refix the compensation under this head as Rs.1,500/-, resulting an additional compensation of **Rs.1,100/-.** 26. Towards 'extra nourishment' and attendant charges the Tribunal awarded a sum of Rs.1,750/- and Rs.800/respectively. Since the accident is of the year 2004, the appellant/claimant is entitled for compensation under the head 'extra nourishment at the rate of Rs.100/- per day and that under the head 'attendant charges' at the rate of Rs.150/per day. He had undergone in patient treatment for a period of 8 days. Therefore he is entitled only for Rs.800/- (8x100) under the head 'extra nourishment', as against Rs.1,750/- ## **M.A.C.A NO. 1428 of 2011 &** **M.A.C.A NO. 1610 of 2011 12** awarded by the Tribunal. Under the head 'attendant charges', he is entitled for Rs.1,200/- (8x150) as against Rs.800/awarded by the Tribunal. Since the appellant (claimant) had already been paid excess compensation under the head 'extra nourishment', he is not entitled for disbursement of any additional compensation under the head 'attendant expenses'. 27. Towards pain and suffering, the Tribunal awarded a sum of Rs.16,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, we find that the compensation awarded by the Tribunal under the above head represents a just and reasonable compensation, which requires no enhancement in this appeal. 28. Towards 'loss of amenities' the Tribunal awarded a sum of Rs.10,000/-, though no disability certificate has been produced to prove any disability that has arisen from the injuries sustained in the accident. Considering the nature of injuries sustained, as borne out from medical records, we deem it appropriate to refix the compensation under this head as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-.** 29. In the result, the appellant in M.A.C.A No.1610/11 will be entitled for an additional compensation of **Rs.24,301/-** ## **M.A.C.A NO. 1428 of 2011 &** **M.A.C.A NO. 1610 of 2011 13** (18,201+1,100+5,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. 30. Since the insurance coverage of the offending vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal within one month from the date of receipt of a certified copy of this judgment. The appeals are disposed of as above, awarding additional compensation to the appellant/claimant in both the appeals, as stated in paragraphs 20 and 29 herein before. No order as to costs. sd/- **C.T.RAVIKUMAR, JUDGE** sd/- **ANIL K.NARENDRAN JUDGE** sab