THARUN K. THOMAS @ THARUN v. JOSEPH @ BIJU, IDICULA K.M., DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., AND ALEYAMMA K. THOMAS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939 MACA.No. 1034 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 553/2002 of MACT, MAVELIKKARA DATED 28-01-2011 APPELLANT(S)/IST PETITIONER: --------------------------- THARUN K.THOMAS @ THARUN, KOCHEETHARA VEETTIL, MAZHUKEERKEEZH MURI, THIRUVANVANDOOR, KALLISSERY P.O. BY ADV. SRI.T.K.KOSHY RESPONDENT(S)/RESPONDENTS 1 TO 3 & 2ND PETITIONER: -------------------------------------------------- 1. JOSEPH @ BIJU, KAKKUZHIYIL VEETTIL, THOTTAMAN MURI, RANNY-689672 2. IDICULA K.M., KARUKELIL PADINJARETHU, THIRUVANVANDOOR P.O., CHENGANNUR-689101 3. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., KAYAMKULAM-690502 4. ALEYAMMA K.THOMAS, KOCHEETHARA VEETTIL, MAZHUKEERKEEZH MURI, THIRUVANVANDOOR, KALLISSERY P.O.- 689124 ## R3 BY ADV. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.1034 OF 2011 ==========================** Dated this the 20[th] day of July, 2017 ## **JUDGMENT** _Anil K. Narendran, J._ This appeal arises out the award passed by the Motor Accidents Claims Tribunal, Mavelikara in O.P.(MV).No.553 of 2002, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/1[st] claimant in a motor accident which occurred on 4.07.2000 while travelling on a motor cycle bearing Reg.No.KL-5/C2688, as a pillion rider. At the place of accident, the motor cycle was hit by an autorickshaw bearing Reg.No.KL-5/6718 driven and owned by respondents 1 and 2 and insured with the third respondent. As a result of the accident, the appellant/1[st] claimant sustained fatal injuries. Alleging that the accident occurred due to the rash and **M.A.C.A.1034/2011** 2 negligent driving of the autorickshaw by the first respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,83,000/-, which was limited to Rs.1,75,000/-, for the purpose of payment of court fee. 2. Before the Tribunal, Exts.A1 to A13 series were marked on the side of the appellant/1[st] claimant and he was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw by the first respondent driver. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.65,000/- and directed the third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7.5% per annum from the date of the petition till **M.A.C.A.1034/2011** 3 realisation. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/1[st] claimant is before this Court in this appeal. 5. Heard the learned counsel for the appellant/1[st] claimant and the learned counsel for the third respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under different heads warrants interference. 7 **.** The accident is of the year 2000 and at the time of the accident, the appellant/1[st] claimant was aged 16 years. Ext.A8 certificate issued by the Principal of S.C.Seminary Higher Secondary School would show that, as a result of the injuries sustained in the accident, the appellant/1[st] claimant had to discontinue his studies in the 10[th] standard with effect from 25.7.2000 and he was re-admitted in the school only on 6.6.2001. 8. The injuries sustained by the appellant/1[st] claimant, as borne **M.A.C.A.1034/2011** 4 out from Ext.A6 wound certificate, read thus:- 1. Severe pain around right thigh middle 3[rd] and right knee. 2. Type III fracture shaft of femur right 3. Multiple abrasion on left leg 4. Fracture lateral condyle right leg The medical records would show that the appellant/1[st] claimant had undergone inpatient treatment for a period of 30 days from 6.07.2000 to 21.7.2000 and thereafter, from 6.11.2002 to 21.11.2002. 9. Appellant/1[st] claimant has also produced Ext.A10 medical certificate dated 3.8.2005 in which a permanent disability of 11% has been certified. However, no steps were taken to prove the said certificate by examining the doctor concerned. In the absence of such a course adopted by the appellant/1[st] claimant, the Tribunal cannot be found fault with in not accepting the said certificate for the purpose of assessing compensation under different heads, especially in view of the law laid down by the Apex Court in **Raj Kumar v. Ajay Kumar** ## **[2011 (1) KLT 620].** 10. The compensation awarded by the Tribunal under different **M.A.C.A.1034/2011** 5 ## heads reads thus:- |**_Head of claim_**|**_Amount claimed_**<br>**_(in Rupees)_**|**_Amount_**<br>**_awarded (in_**<br>**_Rupees)_**| |---|---|---| |Medical expenses|45000|27750| |Bystander's expenses|2500|3000| |Transportation charges|5000|2500| |Extra nourishment|5000|1500| |Damage to clothing|500|250| |Pain and sufferings|25000|15000| |Permanent disability|75000|nil| |Loss of amenities|25000|15000| |Total|183000/- (limited<br>to Rs.175000/-)|65000/-| 11. Towards medical expenses, the appellant/1[st] claimant claimed a sum of Rs.45,000/-. The Tribunal awarded a sum of Rs.27,750/- under the said head, which is covered by Ext.A13 series of medical bills. The learned counsel for the appellant would contend that since the actual medical expenses incurred by the appellant is much higher than that is reflected in Ext.A13 series of medical bills, the Tribunal ought to have awarded the entire amount of Rs.45,000/claimed by him. We are unable to agree. In the matter of award of compensation under pecuniary heads, claim should be supported by **M.A.C.A.1034/2011** 6 documents. Therefore, in the case of award of compensation under the head medical expenses, unless the entire claim is supported by reliable documents, the Tribunal can only limit the compensation to the extent it is supported by such documents. 12. Towards bystander's expenses, the Tribunal awarded a sum of Rs.3,000/- and a further sum of Rs.1,500/- was awarded under the head extra nourishment. We have already noticed that the appellant/1[st] claimant had undergone inpatient treatment for a period of 30 days, in two different spells. The nature of the injuries sustained, as borne out from Ext.A6 wound certificate, includes type III fracture shaft of fenur right and fracture of lateral condyle right leg. The said injuries require the engagement of a bystander and consumption of special foods for a considerably longer period. Therefore, considering the nature of injuries and the age at which the appellant sustained such injuries, we deem it appropriate to grant bystander's expenses and extra nourishment for a period of 90 days. Since the accident is of the year 2000, the appellant is entitled for **M.A.C.A.1034/2011** 7 payment of compensation under the head bystander's expenses at the rate of Rs.150/- per day and extra nourishment at the rate of Rs.100/per day. On re-working the compensation as above, the compensation payable under the head bystander's expenses will come to Rs.13,500/(150x90), resulting an additional compensation of **Rs.10,500/-** . Similarly, the compensation payable under the head extra nourishment is re-worked as Rs.9,000/- (100x90), resulting an additional compensation of **Rs.7,500/-** . 13. Towards transportation expenses, the Tribunal awarded a sum of Rs.2,500/-, as against a claim of Rs.5,000/-. Before the Tribunal, relying on Ext.A12 trip sheets, the appellant/1[st] claimant claimed a sum of Rs.9,233/- towards transportation charges. However, the said documents were not proved. In such circumstances, the Tribunal had not reckoned the said documents for the purpose of assessing compensation under this head. The said reasoning of the Tribunal warrants no interference in this appeal. 14. Towards damage to clothing, the Tribunal awarded a sum of **M.A.C.A.1034/2011** 8 Rs.250/- as against a claim of Rs.500/-. Considering the fact that the accident is of the year 2000, we deem it appropriate to re-fix the compensation under this head as Rs.500/-, resulting an additional compensation of **Rs.250/-** . 15. Towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of the injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we deem it appropriate to grant a sum of Rs.25,000/- under this head, resulting an additional compensation of **Rs.10,000/-.** 16. Towards permanent disability, no amount was awarded by the Tribunal. In the absence of any reliable materials to prove disability that had arisen and the injuries sustained in the accident, the Tribunal awarded no compensation under this head. As such, the appellant/claimant is not entitled for any compensation under this head. 17. As discernible from paragraph 8 of the impugned award, the Tribunal awarded a sum of Rs.15,000/- as compensation for loss **M.A.C.A.1034/2011** 9 of amenities and for loss of prospects of study. Considering the nature of injuries sustained by the appellant, as borne out from medical records, we find that the compensation awarded by the Tribunal under represents just and reasonable compensation, under the head loss of amenities. However, taking into account the facts and circumstances of the case, we deem it appropriate to grant separate compensation under the head loss of prospects of study. As borne out from Ext.A8 certificate, the appellant sustained injuries at the age of 16 years while he was studying in 10[th] standard, and he had to discontinue his studies for nearly one year. In such circumstances, we deem it appropriate to grant a sum of **Rs.25,000/-** additionally under the head loss of prospects of study. 18. In the result, the appellant will be entitled for an additional compensation of **Rs.53,250/-** (10,500+7,500+250+10,000+25,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation. 19. Since the insurance coverage of the offending vehicle is not **M.A.C.A.1034/2011** 10 in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1034/2011** 11 **C.T. RAVIKUMAR, J.** **JUDGMENT** 12 ## **M.A.C.A.1034/2011** **September, 2010**