Thrideepan v. Sabu, Remanan & United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943** **MACA NO. 2278 OF 2009** **OPMV 342/2001 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, WAYANAD, KALPETTA** ## **APPELLANT (PETITIONER)** THRIDEEPAN, AGED 29 YEARS, S/O NANU A.R. PALLIMURI HOUSE, ATHIRATTUKUNNU P.O., KENICHIRA (VIA), S.BATHERY TALUK, WYNAD DISTRICT BY ADV SRI.N.J.ANTONY ## **RESPONDENT (RESPONDENTS)** 1.SABU,M.D AGED NOT KNOWN, S/O DEVASSYA, MOOTHEDATH HOUSE, ATHIRATTUKUNNU POST, KENICHIRA (VIA), S.BATHERY TALUK, WAYANAD DISTRICT, (DRIVER OF THE JEEP NO.KL12A/6570. D.L.NO. NOT KNOWN. 2. REMANAN, AGE AND FATHER'S NAME NOT KNOWN, VENGATHANATH HOUSE, KENICHIRA POST, S.BATHERY TALUK, WAYANAD DISTRICT (OWNER OF THE JEEP NO.KL-12A/6570) 3. UNITED INDIA INSURANCE CO.LTD, KALPETTA (POLICY NO. NOT KNOWN) BY ADVS. SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SRI.P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 6.1.2022, THE COURET ON 17.01.2022 DELIVERED THE FOLLOWING: MACA 2278/2009 2 ## JUDGMENT ## Dated : 17[th] January, 2022 1. The appellant is the claimant in OP.(MV).342/2001 on the file of Motor Accidents Claims Tribunal, Wayanad, Kalpetta. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injury sustained by the appellant/claimant. 2. It is alleged that on 22.4.2001, at about 1.30 pm, while the appellant was standing on the side of Vellaramkunnu road, a Jeep bearing registration No.KL-12A/6570, came in a rash and negligent manner and knocked him down and thereby he sustained grievous injuries. Immediately he was taken to District Hospital, Mananthavadi. It is alleged that the accident occurred due to the rash and negligent driving of the jeep by the 1[st] respondent. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the jeep. 3. Respondents 1 and 2 remained ex parte to the proceedings before the Tribunal. 3[rd] respondent/insurer filed written statement admitting the insurance coverage with respect to the offending vehicle. It is also contended that the accident occurred due to the negligence of the petitioner. The MACA 2278/2009 3 claims made under various heads are also denied by the 3[rd] respondent. 4. There was no oral evidence from either side.Exts.A1 to A4 were marked from the side of the appellant/claimant (hereinafter referred as claimant). 5. Heard the learned counsel for the claimant as well as the standing counsel for the 3[rd] respondent/insurer. Lower Court Records were called for and perused. 6. The tribunal on evaluating the pleadings and materials on record, found that accident occurred due to the rash and negligent driving of the jeep bearing registration No.KL-12A/6570, by the 1[st] respondent. Hence the 2[nd] respondent/owner was held vicariously liable and since the vehicle is covered by policy of insurance, the 3[rd] respondent was held liable to make good the loss sustained by the claimant. Total compensation awarded by the tribunal is Rs.7750/with 6% interest per annum from the date of filing of the petition, less the amount if any paid under Section 140 of the Act. 7. Dissatisfied with the quantum of compensation awarded by the tribunal under various heads, the claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 8. Finding of the Tribunal with regard to rashness and negligence on the part of 1[st] respondent and MACA 2278/2009 4 liability of the respondents is not disputed. The challenge is with regard to the quantum of compensation awarded by the Tribunal alone. 9. The learned counsel for the claimant argued that the monthly income claimed by the claimant was Rs.4000/-. But the tribunal fixed the monthly income as Rs.2100/-. It is very low. He would also contend that the compensation awarded towards loss of earning towards transportation charges,- towards extra nourishment; - damage to clothing , bystander expenses; and Rs.500/- awarded towards medical expenses are very low. 10. The learned counsel for the 3[rd] respondent on the other hand would contend that a just and reasonable compensation has been awarded by the tribunal in view of the minor nature of injuries sustained by the claimant. 11. So the only point for consideration is whether the claimant is entitled for any enhanced compensation ? 12. The wound certificate of the claimant would prove that the claimant sustained contusion lower end of right leg with fracture lower one-third of right tibia. He was hospitalized for three days. No disability certificate or any other material has been produced to prove that the claimant sustained any disability due to the accident. MACA 2278/2009 5 13. The fixation of monthly income as Rs.2100/- for the claimant being a cooli, according to the counsel for the claimant is very low. According to him an amount of Rs.4000/- ought to have been fixed as monthly income. 14. In Ramachandrapa v Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the Hon'ble Apex Court notionally fixed the monthly income of cooli in the year 2004 as rupees 4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if the claim made is so exorbitant or if the claim made is contrary to ground realities the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 15. In Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735] Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-08-2008. Claimant was a vegetable vendor aged about 24 years who sustained MACA 2278/2009 6 injury to the lower end of right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in Ramachandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 16. In the present case, the accident happened in the year 2001, ie, three years prior to Ramachandrapa's case. 17. Claimant is alleged to be a coolie worker aged 29 years at the time of accident. So following the principles in Ramachandrapa & Syed Sadiq , I am of the view that Rs.3000/- can be fixed as notional income. 18. Raj Kumar v. Ajay Kumar and Another (2011 (1) SCC 343 = 2010 KHC 5021) dealt with general principles relating to compensation in injury cases. Paragraph Nos.4 and 5 of the said judgment are relevant to be extracted which read as follows :- “4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that MACA 2278/2009 7 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. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C.K.Subramonia Iyer vs. T.Kunhikuttan Nair - AIR 1970 SC 376, R.D.Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467). 5. The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, MACA 2278/2009 8 nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : - (a) Loss of earning during the period of treatment; - (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) - (iv) Damages for pain, suffering and trauma as a consequence of the injuries. - (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to 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. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of MACA 2278/2009 9 actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of nonpecuniary damages - items (iv), (v) and (vi) -- 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. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability. 19. So the object of awarding damages is to make good the loss sustained as a result of the wrong done by the opposite party to the extent to which the money can compensated, that too in a fair and reasonable and equitable manner. The courts or the Tribunal have to assess the damages objectively excluding any speculation or fantacy, though some conjecture with reference to disability was held to be permissible and inevitable. A person has to be MACA 2278/2009 10 compensated not only for the physical injury but also for the loss which he suffered as a result of the injury. It is also made clear in paragraph 5 that compensation is awarded in personal injury cases under the heads pecuniary damages as well as nonpecuniary damages. 20. So in routine personal injury cases compensation will be awarded only under pecuniary damages (special damages) (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure (ii) as loss of earning during the period of treatment and under general damages for pain and suffering and trauma as a consequence of injuries. 21. In this case claimant is a 29 year old coolie and he had sustained fracture lower one-third of right tibia. Being a coolie which needs much physical exertion with lower limb, fracture of tibia lower third would have prevented him from doing the coolie work for at least two months. 22. So loss of earning for two months can be given and hence loss of earning can be refixed as Rs.3000 x 2 = Rs.6000/-. Transportation charges can be refixed as Rs.500/-. Rs.500/- calculated towards extra nourishment by the Tribunal is seems to be just and proper. Towards damages to clothing, an amount of Rs.500/- can be fixed. Towards 'bystander expenses' MACA 2278/2009 11 for three days, an amount of Rs.600/ - can be fixed. Towards pain and suffering, an amount of Rs.3,500/can be further granted. So in total, the claimant is entitled for an enhanced compensation of Rs.9,350/(5000 + 200 + 250 + 400 + 3500). 23. In the result, Appeal allowed in part and the appellant is allowed to realize an additional compensation of Rs.9,350/- which will carry interest at the rate 7.5% interest per annum from the date of petition, till realization. There was delay of 472 days in filing the appeal. Hence interest will be excluded for the said period of 472 days. 24. 3[rd] respondent/insurer shall satisfy the additional amount together with interest within a period of two months from the date of receipt of a certified copy of this judgment. Appellant/claimant shall provide his bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. Parties shall bear their respective costs. Sd/- ## M.R.Anitha, Judge Mrcs/6.1.22