THATHA v. GURUVAYOORAPPAN & ORS.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944** **MACA NO. 844 OF 2014** **AGAINST THE AWARD DATED 27.8.2013 IN OP(MV) No.738/2010 ON THE** **FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANT/PETITIONER:** THATHA, W/O.KANDAYI, AGED 64 YEARS NAGOORCHALLA,KOYYAMMARAKKADU, KANJIKODE, PALAKKAD BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA ## **RESPONDENTS/RESPONDENTS:** 1 GURUVAYOORAPPAN AGE AND FATHER'S NAME NOT KNOWN, AMRUTHA BHAVAN, HOUSE NO 38/748, NEAR KSRTC BUYSTAND, MANJAKKULAM,PALAKKAD TOWN 678 014 2 SIVADAS, S/O.NATARAJAN, AGED 30 YEARS PARAYIL VELIKALAM,VENGODI PARA, ELAPPULLY,PALAKKAD - 678 622 3 CHOLAMANDALAM M/S. GENERAL INSURANCE COMPANY LIMITED DARE HOUSE, 2ND FLOOR, NSC BOSE ROAD, CHENNAI, TAMIL NADU-600001 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. BY ADV.SRI.P. JACOB MATHEW - R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.844 OF 2014 2 ## **JUDGMENT** Dated this the 24[th] day of May, 2022 This appeal has been filed against the award passed in O.P.(M.V) No.738/2010 on the file of Motor Accidents Claims Tribunal, Palakkad (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) due to the injury sustained by the appellant/claimant (hereinafter be referred as the claimant). 2. Accident occurred on 20.5.2009 at Koyyamarakkadu at about 9.50 p.m., due to hit by stage carriage bus bearing Reg.No.KL09/V/3374 while the claimant was standing on the side of the road. It is alleged that accident happened due to the rash and negligent driving of the bus by the 2[nd] respondent. 1[st ] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. The claim is for a total amount of Rs.5,00,000/-. 3. Before the Tribunal, 1[st] and 2[nd] respondents remained exparte. The 3[rd] respondent/insurer filed written statement admitting MACA NO.844 OF 2014 3 the policy coverage with respect to the offending vehicle. 4. Exhibits A1 to A12 and X1 marked from the side of the claimant. There was no oral evidence from either side. Tribunal on evaluating the pleadings and documents found that 2[nd] respondent is responsible for the accident. 1[st] respondent is held vicariously liable for the acts of the 2[nd] respondent. The 3[rd] respondent/insurer is held liable to indemnify the insured and a total compensation of Rs.80,739/- was awarded. 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. Notice was duly served upon respondents 1 and 2 and there was no appearance. Adv.P.Jacob Mathew, appeared on behalf of the 3[rd] respondent/insurer. Heard the learned counsel for the claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. 7. According to the learned counsel for the claimant, the MACA NO.844 OF 2014 4 claimant was a manual labourer aged 60 years. He claimed monthly income of Rs.3,500/-. But the Tribunal taken the income notionally as Rs.3,000/-, which according to him is very low. He would also contend that the Medical Board certified permanent disability at 62%. But the Tribunal refused to award any compensation under the head of future earning capacity. Rs.50,000/- in lump sum was awarded under the head of loss of amenities. He would contend that loss of earning for a period of two months alone has been awarded. It is also contended that the amount awarded towards pain and suffering, bystander expenses and extra nourishment etc. are very low. Hence, he seeks for enhancement of compensation on the above heads. 8. The learned 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.3,500/- per month has been claimed no evidence has been adduced to prove the income. In **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance** MACA NO.844 OF 2014 5 **Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court has notionally taken 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 60 years old and the accident was in the year 2009 as per **Ramachandrappa** monthly income of Rs.3,500/- 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, 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 MACA NO.844 OF 2014 6 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 would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been injured, MACA NO.844 OF 2014 7 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 this case claimant produced Ext.A9 discharge certificate, Ext.A12 discharge summary and Ext.X1 disability certificate issued by the Medical Board. Ext.A9 discharge certificate issued from Jubilee Mission Medical College Hospital, would show that he had undergone inpatient treatment from 20.5.2009 to 30.5.2009. The injuries are noted as head injury ie left temporal-parietal thin subdural hematoma and a cut wound on right temporal scalp. MACA NO.844 OF 2014 8 16. Ext.X1 disability certificate would state that permanent neurological disability except for hearing disability is Zero percentage (0%). It would also state that as per PTA report claimant has a permanent disability at 62% due to the sensorineural hearing loss. 17. The main contention of the learned counsel for claimant is that in spite of Ext.X1 certificate issued by the Medical Board, Tribunal was not inclined to award any compensation under the head of permanent disability and only Rs.50,000/- was awarded under the head of loss of amenities and convenience of life. 18. The claimant is a lady and she is a manual labourer, the injury sustained is to her head involving, left temporal-parietal thin subdural hematoma with left temporal sub arachnoid haemorrhage, cut wound right temporal scalp. So 62% sensory-neural hearing disability assessed by the Medical Board due to the sensorineural hearing loss can be taken as 22% whole body functional disability, since, the injury and the disability would cause loss to her earning capacity being a daily labourer aged 60 years 19. Since the claimant was 60 years old at the time of 9 MACA NO.844 OF 2014 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 '9'. So, compensation towards permanent disability, would be Rs.83,160/- (Rs.3,500x12x9x22/100). 20. Loss of earnings for 2 months has been awarded by the Tribunal. It has come out that claimant had undergone inpatient for 11 days. So, loss of earnings for 2 months can be maintained and refixing the amount towards loss of earning the amount would be Rs.7000/(3,500x2) Deducting the amount already awarded, balance would be Rs.1,000/- (Rs.7,000-6,000). 21. Tribunal awarded Rs.50,000/- towards loss of amenities and convenience of life. From that Rs.30,000/- can be deducted towards disability and Rs.20,000/- can be adjusted towards loss of amenities since, the accident and resultant injuries would cause great inconvenience to her life. So, towards permanent disability, claimant MACA NO.844 OF 2014 10 is entitled to get Rs.83,160-30,000=Rs.53,160/-. 22. According to the learned counsel for the claimant, the claimant had undergone 11 days inpatient treatment but only Rs.1,100/- ie. @ Rs.100/- per day, has been awarded by the Tribunal towards bystander expense. The accident was in the year 2009, hence Rs.250/- per day can be taken as bystander expense. Hence, towards bystander expense claimant is entitled to get Rs.2,750/(Rs.250x11). Deducting the amount already awarded the balance would be Rs.1,650/- (Rs.2,750-1,100). 23. No amount seen awarded towards extra nourishment. Since, she had undergone inpatient treatment for 11 days. An amount of Rs.11,00/- is awarded towards extra nourishment. 24. Towards pain and suffering, Tribunal only awarded Rs.9,000/-. Since, the claimant is an old lady and the injuries are mainly on her head an amount of Rs.15000/- can be awarded towards pain and suffering. Deducting the amount already awarded, balance would be Rs.6,000/- (Rs.15,000-9,000). So, claimant is entitled to get enhanced compensation of Rs.61,910/- (Rs.1,000 + MACA NO.844 OF 2014 11 1,100 + 6,000 + 1,650 + 53,160) rounded to Rs.63,000/-. 25. In the result, appeal allowed by enhancing compensation to an amount of **Rs.63,000/(Rupees sixty three thousand only)** which will carry interest @ 6.5% per annum from the date of petition excluding the period of delay of 82 days in filing the appeal. The 3rd 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. 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 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