SURESHKUMAR P. AGED 33 YEARS S/O. KRISHNANKUTTY NAIR v. AHAMMEDKUTTY and THE NATIONAL INSURANCE CO. LTD.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 MACA NO. 2673 OF 2014** **AGAINST THE AWARD DATED 25.05.2010 IN OPMV 346/2007 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** SURESHKUMAR P. AGED 33 YEARS S/O. KRISHNANKUTTY NAIR, SRUTHI HOUSE, CHOLAKKARA, KOZHAKOTTOOR, AREEKODU POST, MALAPPURAM. BY ADV SRI.V.S.CHANDRASEKHARAN ## **RESPONDENTS/RESPONDENTS:** 1 AHAMMEDKUTTY AGE NOT KNOWN, S/O. MAMMAD HAJI, KARINJANAKKAL, PALAPATTA OORANGATTIRI POST, AREACODE, MALAPPURAM - 673 639. (RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 08/03/2019 IN IA 1/2019 IN MACA 2673/14) 2 THE NATIONAL INSURANCE CO. LTD DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE - 673 661. BY ADVS. SRI.AGI JOSEPH LAL GEORGE SRI.AJI JOSEPH-R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 2673 OF 2014 2 ## **JUDGMENT** Dated this the 18[th] day of May, 2022 This appeal has been filed against the award passed in O.P.(M.V) No.346/2007 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation due to the injury sustained by the appellant/claimant (hereinafter be referred as the claimant). 2. Accident occurred on 08.2.2006 at about 8.30 p.m., while the claimant was riding on the pillion of motorcycle bearing Reg.No.KL-11-H-8245, due to hit by bus bearing Reg.No.KL-10-P7306 near Vijaya Talkies. It is alleged that accident happened due to the rash and negligent driving of the bus by the 3[rd] respondent. 1[st] respondent is the owner and 2[nd] respondent is the insurer of the offending vehicle. The claim is for a total amount of Rs.4,00,000/-. 3. Before the Tribunal, 2[nd] respondent/insurer alone filed MACA NO. 2673 OF 2014 3 written statement admitting the policy coverage and denying the rashness and negligence of the 3[rd] respondent and injury sustained by the claimant. 4. Exhibits A1 to A7 and C1 marked from the side of the claimant. There was no oral evidence from either side. Tribunal on evaluating the pleadings and documents, came to a conclusion that the accident happened due to the rash and negligent driving of the bus by the 3[rd] respondent and 1[st] respondent/RC owner held vicariously liable for the act of the 3[rd] respondent. The 2[nd] respondent/insurer is held liable to indemnify the insured. The Tribunal awarded a total compensation of Rs.2,24,869/-. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 6. Adv.Aji Joseph, appeared on behalf of the 2[nd] respondent/insurer. Heard the learned counsel for the claimant and also the learned Standing Counsel for the 2[nd] respondent/insurer. MACA NO. 2673 OF 2014 4 Lower court records were called for and perused. 1[st] respondent/insured was deleted from party array. 7. According to the learned counsel for the claimant, the claimant was a bus conductor aged 33 years. He claimed monthly income of Rs.5,000/-. But the Tribunal taken the income notionally as Rs.3,000/-, which according to the learned counsel for the claimant is very low. He would also contend that loss of earning for a period of two months alone has been awarded, in spite of the fact that very serious injuries has been sustained by the claimant and he had undergone inpatient treatment for 57 days. The learned counsel also would contend that the Medical Board certified 33% permanent whole body disability. Hence, the learned counsel prays for enhancement of compensation on all heads. 8. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has been awarded by the Tribunal and no interference is called for at the instance of this Court. 9. Though, income of Rs.5,000/- per month has been MACA NO. 2673 OF 2014 5 claimed, no evidence whatsoever has been adduced to prove the income. In **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court has notionally fixed the monthly income of a coolie in an accident occurred in the year 2004 at Rs.4,500/-. 10. In the present case, since the claimant was 33 years old and the accident was in the year 2006 as per Ramachandrappa monthly income of Rs.5,000/- claimed can be accepted. 11. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** 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 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 MACA NO. 2673 OF 2014 6 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. 12. 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 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 cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation MACA NO. 2673 OF 2014 7 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). 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 thereof on the future life of the claimant. 15. In the present case, the claimant sustained communited fracture shaft of (L) femur, neck of femur (L), fracture frontal bone, left orbita zygomatic area, (L) maxillary bone and subdural haemorrhage (L) parietal region. Ext.A2 is the wound certificate and Ext.A4 is the discharge card. The discharge card shows that he was MACA NO. 2673 OF 2014 8 admitted on 09.2.2006 and discharged on 23.3.2006. Ext.A5, case record shows that he was referred to Medical College Hospital with the alleged history of RTA on examination of fracture. He had undergone treatment for oral and maxillofacial surgery at Dental College, Calicut. Ext.A3 is the reference card issued from Directorate of Medical Education, Medical College Hospital, Kozhikode, proving his admission on 04.8.2008 and discharge on 19.8.2008. It further would go to show that after discharge he had undergone outpatient treatment upto 25.8.2008. 16. Ext.C1 is the disability certificate issued by the Medical Board certifying 33% permanent disability. So, from the nature of injuries and period of treatment as well as the procedures of treatment undergone by the claimant, the loss of earnings for 2 months awarded by the Tribunal is not seems to be a just compensation. Hence loss of earnings for 4 months is awarded. That would come to Rs.20,000/- (Rs.5,000x4). Deducting the amount already awarded balance would be Rs.14,000/- (Rs.20,000-6,000). MACA NO. 2673 OF 2014 9 17. According to the learned counsel for the claimant, the claimant had undergone 57 days inpatient treatment but only Rs.5,700/- ie. @ Rs.100/- per day, has been awarded by the Tribunal towards bystander expense. The accident was in the year 2006, hence Rs.200/- per day can be taken as bystander expense. Hence, towards bystander expenses, claimant is entitled to get Rs.11,400/(Rs.200x57). Deducting the amount already awarded the balance would be Rs.5,700/- (Rs.11,400-5,700). 18. Towards pain and suffering only Rs.10,000/- has been awarded by the Tribunal. Taking into account the grievous nature of injuries sustained by the claimant as well as the period of inpatient treatment undergone by him amount of Rs.25,000/- claimed towards pain and suffering is seems to be just and reasonable. Hence, towards pain and suffering the claimant is entitled to get enhanced compensation of Rs.15,000/- (Rs.25,000-10,000). 19. Medical Board certified 33% of permanent disability, that has been adopted by the Tribunal for computing compensation MACA NO. 2673 OF 2014 10 towards permanent disability. Claimant was 33 years old at the time of accident. The proper multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '16'. Re-fixing the amount towards permanent disability, the claimant would be entitled to get Rs.5,000 x 12 x 16 x 33/100=Rs.3,16,800/-. Deducting the amount already awarded, balance would Rs.126,720/- (Rs.3,16,800- 1,90,080). Towards loss of amenities no amount is seen awarded. Taking into account nature of injuries as well as his occupation alleged and permanent disability suffered by the claimant Rs.15,000/- can be awarded towards loss of amenities. Hence, the claimant is entitled to get enhanced compensation of Rs.1,76,420/- (Rs.1,26,720 + 15,000 + 15,000 + 5,700 + 14,000) rounded off to Rs.1,76,450/-. 20. In the result, appeal allowed by enhancing compensation to an amount of **Rs.1,76,450/(Rupees one lakh seventy six** MACA NO. 2673 OF 2014 11 **thousand four hundred and fifty only)** which will carry interest @ 6% per annum from the date of petition excluding the period of delay of 1486 days in filing the appeal. The 2nd respondent/insurer shall satisfy 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, deducting the amount due towards balance court fee from the claimant. 21. The disbursement of enhanced compensation to appellant/claimant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Sd/- ## **M.R.ANITHA JUDGE** SMF MACA NO. 2673 OF 2014 12 ## **APPENDIX OF CRL.MC 3377/2021** APPELLANT'S ANNEXURE Annexure A1 MEMO DATED 27.5.2014 ISSUED BY ADV.RASHMI K.V. TO SRI.SANTHOSH KUMAR K.P., ADVOCATE CLERK. Annexure A2 REPLY ISSUED BY SRI.SANTHOSH KUMAR K.P. ADOVOCATE CLERK DATED 30.5.2014. Annexure A3 LETTER ISSUED TO SRI. ANIL THOMAS ADVOCATE BY ADV.RASHMI K.V. DATED 02.6.2014. Annexure A4 MEMO ISSUED BY ADV.ANIL THOMAS TO SRI.SANTHOSH KUMAR K.P., ADVOCATE CLERK DATED 3.6.2014. Annexure A5 LETTER ISSUED BY ADV.ANIL THOMAS TO THE REGISTRAR HIGH COURT OF KERALA DATED 4.6.2014.