Syamala v. A. Pradeepkumar, V.V. Hari Veluthasseril Veedu, The United Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944** ## **MACA NO. 2485 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1582/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **ALAPPUZHA** ## **APPELLANT/PETITIONER:** **SYAMALA** **W/O RAVEENDRAN, KANDANKERY VEEDU, CHERTHALA SOUTH P.O., CHERTALA, ALAPPUZHA.** **BY ADV SRI.T.B.SARASAN** ## **RESPONDENTS/RESPONDENTS:** **1 A. PRADEEPKUMAR S/O ARJUNAN, VELIYIL VEEDU, KADAKKARAPALLY PO, CHERTHALA.688529. 2 V.V.HARI VELUTHASSERIL VEEDU, MARARIKULAM NORTH POST, CHERTALA.688549 3 THE UNITED INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, ALLEPPEY.688 001. BY ADV SRI.T.J.LAKSHMANAN IYER** ## **OTHER PRESENT:** **SRI.T.J LAKSHMANAN IYER - R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2485/2012 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.1582/2005 on the file of Motor Accidents Claims Tribunal, Alappuzha (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming total compensation of Rs.1,53,000/- due to injuries sustained by the appellant in a motor accident occurred on 03.11.2005 at about 9.30 a.m on Kanichukulanga-Cherthala road, near Areeparambu junction by hit with motorcycle bearing Reg.No.KL/4F/4695 ridden by the first respondent and owned by the second respondent, insured. Third respondent is the insurer. It is alleged that accident happened due to the rash and negligent riding of motorcycle by the 1st respondent. 2. Before the Tribunal, first and second respondents remained exparte. Third respondent, insurer filed written MACA No.2485/2012 3 statement admitting the policy coverage with respect to the offending vehicle. But rashness and negligence on the part of the first respondent is denied. Appellant is put to strict proof regarding the allegation of age, income and occupation. 3. Appellant was examined as PW1. Exts.A1 to A7 and Ext.X1 marked from the side of the appellant. There was no evidence from the side of respondents. 4. The Tribunal on evaluating the evidence as well as the facts and circumstances held that the accident happened due to the rash and negligent riding of the motorcycle by the first respondent. Second respondent, insured, is held vicariously liable for the acts of the first respondent and third respondent is directed to indemnify the second respondent as per the contract of insurance. A total compensation of Rs.22,670/- was awarded, which was allowed to realise with interest at the rate of 7.5% per annum from the date of petition till realisation. 5. Dissatisfied with the quantum of compensation MACA No.2485/2012 4 awarded by the Tribunal, appellant is before this Court in appeal for various grounds stated in the memorandum of appeal. 6. Notice as against first and second respondents is dispensed with since the third respondent admitted the policy coverage with respect to the offending vehicle. Advocate Sri. T.J. Lakshmanan Iyer appeared on behalf of the third respondent, insurer. 7. Heard the learned counsel for the appellant as well as the learned counsel for the third respondent, insurer. Lower court records were called for and perused. 8. According to the learned counsel for the appellant, appellant is a Coir Yarn Spinner and claimed monthly income of Rs.5,400/-. But the Tribunal notionally taken the income as Rs.3,500/-, which, according to him, is very low. He would also contend that the appellant had sustained very serious injuries and the Medical Board certified permanent disability of 8% as per Ext.X1 disability certificate. But the Tribunal refused to award any amount towards permanent disability. He would MACA No.2485/2012 5 also contend that the compensation awarded under other heads are very low and hence seeks for enhancement of compensation on all heads. 9. The appellant is claimed to be a Coir Yarn Spinner and monthly income of Rs.4,500/- has been claimed. Appellant as PW1 also deposed that she used to get monthly income of Rs.4,500/-. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court taken the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. 10. In the present case, the accident was on 03.11.2005. The appellant was 48 years old at the time of accident. So the monthly income of Rs.4,500/- claimed can very well 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, MACA No.2485/2012 6 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 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 MACA No.2485/2012 7 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 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. MACA No.2485/2012 8 15. In the present case, appellant produced Ext.A2 wound certificate, Ext.A3 discharge card and Ext.A5 O.P.Ticket to prove the injuries and the treatment undergone by her. Ext.A2 wound certificate issued from Taluk Headquarters Hospital, Cherthala would prove that the appellant was admitted on 03.11.2005 at about 10.00 a.m at the hospital out of road traffic accident and the following injuries were noted on examination: Lacerated injury 1x0.5 cm on the outer aspect of right eyebrow, small abrasion inner aspect of right side of upper and lower lip, multiple small abrasion left hand and swelling right wrist, suspected fracture around wrist is also noted. Ext.A3 is the discharge slip issued from the said hospital, which would prove her inpatient treatment from 03.11.2005 to 09.11.2005. The injuries noted in Ext.A2 are noted in Ext.A3. X-ray showed comminuted fracture lower end of radius right as well as fracture right iliac bone. Details regarding the treatment has also been noted in Ext.A3. Ext.A5 is O.P.Ticket dated 16.12.2005. 16. Ext.X1 is the disability certificate issued by the MACA No.2485/2012 9 Medical Board, T.D. Medical College Hospital, Alappuzha wherein injuries noted in the wound certificate has been referred to and she had complaints of chronic pain on right pelvis and limitation of dorsiflexion of right arm in terminal 30-35[0] and palmar flexion in terminal 35 to 40[0] . The Medical Board ultimately certified 8% permanent partial disability. 17. The Tribunal awarded loss of earning for two months. The appellant was 48 year old lady at the time of accident and is a Coir Yarn Spinner. O.P.Tickets Ext.A5 would show that she had undergone treatment in the month of December also. Discharge card would show that bed rest was advised for iliac bone fracture. So taking all those factors into account, loss of earnings for three months can be awarded instead of two months awarded by the Tribunal. Hence towards loss of earning appellant would be entitled to get Rs.13,500/- [4,500x3]. Deducting the amount already awarded, balance would Rs.6,500/ - [13,500-7,000]. Towards bystander's expense, Tribunal already awarded Rs.700/- by taking Rs.100/per day. Appellant was admitted in the hospital for 7 days. MACA No.2485/2012 10 Since the accident was in the year 2005, Rs.200/- per day can be taken towards expense of bystander. Hence towards bystander's expense, appellant is entitled to get Rs.1,400/[200x7]. Deducting the amount already awarded by the Tribunal, balance would be Rs.700/- [1,400-700]. Towards pain and suffering, in view of the fact that the appellant had sustained iliac bone fracture as well as fracture of right lower end of radius Rs.15,000/- claimed towards pain and suffering is seems to be reasonable. Deducting the amount already awarded, balance would Rs.9,000/- [15,000-6,000]. 18. Medical Board assessed 8% permanent partial disability. But the Tribunal was not inclined to award any amount towards permanent disability for the reason that in the proof affidavit the appellant had not stated that there is any reduction in her earning capacity due to the disability sustained out of the accident. Hence only an amount of Rs.6,000/- was awarded towards loss of amenities. The Medical Board duly constituted as per Ext.X1 noted that the appellant is having 8% permanent partial disability. It is also MACA No.2485/2012 **==> picture [16 x 8] intentionally omitted <==** noted that due to the fracture and injuries the appellant had chronic pain and limitation of dorsiflexion of right arm in terminal 30-35[0] and palmar flexion in terminal 35 to 40[0] . Appellant is a Coir Yarn Spinner. So the disability sustained to her right wrist as well as to iliac bone would definitely reduce her earning capacity, which can be taken as 8% as assessed by the Medical Board. 19. The reasoning of the Tribunal for refusing to accept Ext.X1 disability certificate is not seems to be reasonable. The injuries and disability sustained whether will cause any loss to earning capacity is a factor to be assessed by experts or the court. Hence, I find that appellant is entitled to get compensation towards permanent disability. 20. The appellant was aged 48 years at the time of accident. So as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] as approved by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the suitable multiplier would be '13'. So compensation towards permanent disability would be MACA No.2485/2012 12 - Rs.56,160/ [4,500x12x13x8/100]. The injuries and corresponding disability would definitely cause loss of amenities in life. So towards loss of amenities the amount of Rs.10,000/- claimed by the appellant can very well be awarded. Deducting the amount already awarded, the balance would be Rs.4,000 /- [10,000-6,000]. 21. In the result, appeal allowed and the appellant is allowed to realise enhanced compensation of Rs.76,360/[6,500+700+9,000+56,160+4,000], which is rounded to Rs.76,400/ - (Rupees seventy six thousand four hundred only) which will carry interest at the rate of 6.5 % per annum from the date of petition till realisation (excluding the period of 202 days delay caused in filing the appeal). The third respondent , insurer shall satisfy the 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. 22. Appellant shall provide her Bank Account details (attested copy of the relevant page of the Bank Passbook MACA No.2485/2012 13 having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned counsel for the 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** ## **shg**