Vasudevan Pillai @ Vasu Pillai v Bright Retnaraj, Aneesh R., The Manager, United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** **MACA NO. 958 OF 2013** **AGAINST THE AWARD DATED 24.09.2012 OF THE LEARNED MOTOR ACCIDENTS CLAIMS TRIBUNAL IN OPMV 20/2007, PUNALUR** ## **APPELLANT/PETITIONER:** **VASUDEVAN PILLAI @ VASU PILLAI, S/O.RAGHAVAN PILLAI, MAMOOTTIL VEEDU, VETTIKKAVALA P.O., VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK. BY ADV SRI.MANOJ RAMASWAMY** ## **RESPONDENTS/RESPONDENTS:** |**1**|**BRIGHT RETNARAJ,**| |---|---| ||**S/O.THANKARAJ, MUCHOTTIVILA VEEDU,**| ||**AYINKAMAN, PARASSALA P.O.,**| ||**THIRUVANANTHAPURAM-695 121.**| |**2**|**ANEESH.R.,**| ||**S/O.REMESAN, K.R.BHAVAN,**| ||**PLACHERRY P.O.,**| ||**PUNALUR-691 331.**| |**3**|**THE MANAGER,**| ||**UNITED INDIA INMSURANCE CO.LTD.,**| ||**MAIN ROAD, MARTHANDOM P.O.,**| ||**KANYAKUMARY DISTRICT, TAMIL NADU.**| ||**BY ADVS.**| ||**SRI.ASWIN.P.JOHN**| ||**SRI.P.JACOB MATHEW**| ||**SRI.MATHEWS JACOB SR.**| ||**SMT.MERCIAMMA MATHEW**| ||**SRI.THOMAS ABRAHAM**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 958 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.20/2007 on the file of Motor Accidents Claims Tribunal, Punalur (In short Tribunal). The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant/claimant in a motor accident occurred on 02.01.2006 at M.C Road, Kottarakkara, while he was standing on the side of the road by measuring the properties of his daughter. It is alleged that J.C.B bearing registration No.KL-01-K-4897 used for levelling the property was driven by the 2[nd] respondent, carelessly and rashly removed a mango tree from the property and the mango tree fell down and a branch of the tree hit on the left thigh of the appellent/claimant, resulting in grievous injuries to him. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent. 1[st] respondent is the owner of the offending vehicle. 3[rd] respondent is the insurer. A total compensation of Rs.1,50,000/- has been claimed. M.A.C.A No. 958 of 2013 **3** 2. Before the Tribunal, respondents 1 and 2 did not contest and remained ex parte and the 3[rd] respondent insurer alone filed written statement admitting the policy coverage with respect to the offending vehicle. The allegation of negligence on the part of the 2[nd] respondent is denied. It is also contended that the amount of compensation claimed under various heads are exorbitant. 3. PW1 and PW2 were examined and Exts.A1 to A12 were marked from the side of the appellant/claimant (hereinafter be referred as claimant). There was no defence evidence. 4. On evaluating the evidence and facts and circumstances, the Tribunal found that the accident occurred due to the rashness and negligence on the part of the driver of the JCB, 2[nd] respondent hence the 3[rd] respondent is held liable to indemnify the 1[st] respondent insured. The Tribunal awarded a total compensation of Rs.27,500/- under various heads with interest at the rate of 7.5% per annum. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant is before this Court in appeal for the various grounds stated in the memorandum of appeal. Notice to 1[st] respondent was dispensed with at the risk of the claimant. Though duly served, there is no appearance on behalf of the 2nd respondent. Sri. P.Jacob M.A.C.A No. 958 of 2013 **4** Mathew, the learned Standing Counsel appeared on behalf of the 3 rd respondent insurer. 6. Lower court records were called for and perused and the learned counsel for the claimant and the learned Standing Counsel for the 3[rd] respondent were heard. 7. According to the learned counsel, the claimant sustained serious injuries and he had undergone inpatient treatment for 24 days. But no amount was awarded towards loss of earnings. Eventhough disability certificate produced certifying 13% permanent disability, the Tribunal accept 9% disability for calculating the compensation towards future loss of earning power. Hence she seeks for enhancement of compensation on all heads. 8. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that the claimant is a pensioner and there was no loss of earnings. Further contended that just and reasonable compensation has already been awarded by the Tribunal under various heads and no interference is called for in this appeal. 9. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the apex court has elaborately discussed the general principle relating to compensation in injury cases. In personal M.A.C.A No. 958 of 2013 **5** 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. 10. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (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). 11. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of M.A.C.A No. 958 of 2013 **6** 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. 12. In the present case, to prove the injuries claimant produced Ext.A5 wound certificate, Exts.A6 and A7 discharge cards as well as Ext.A11 certificate of fitness. Those would go to show that he has fracture on left femur and he had undergone inpatient treatment for 24 days. Ext.A8 disability certificate issued by the Associate Professor in Orthpaedics Medical College, Thiruvananthapuram certifying 13% permanent disability. He was not the Doctor who treated the claimant. Ext.A8 also was marked subject to objection. But no steps were taken by the claimant to examine the Doctor who issued Ext.A8. Certificate also does not state that it is whole body disability. Hence permanent whole body disability at 9% taken by the Tribunal can very well be approved. 13. Claimant filed chief affidavit stating that he had been getting more than Rs.3,500/- from agriculture. True that nothing has been produced to substantiate that fact. But accident and resultant injuries will prevent him from doing other works and earn income after M.A.C.A No. 958 of 2013 **7** retirement. (See **New India Assurance Co. Ltd v. Sathish Chandra Sharma and another Civil Appeal No.1579 of 2022 @ SLP No.5 14350/2019** ). However, he was 58 years at the time of accident. Accident was in the year 2006. So monthly income can notionally be taken as **Rs.3,500/-** . 14. Taking into account the nature of injuries and period of treatment undergone by the claimant, the loss of earning for two months can be awarded. That will come to **Rs.7,000/-** (3,500x2). 15. Towards extra nourishment, an amount Rs.1,200/- was awarded by the Tribunal. In view of the facts and circumstances, under the head of extra nourishment an amount of Rs.2,000/- can be granted. Deducting the amount already awarded, the balance would be **Rs.800/-** (2,000-1,200). According to the learned counsel for the claimant, no amount was given towards bystander expenses. But Rs.1,800/- seen awarded towards bystander expenses. For giving just and reasonable compensation, Rs.200/- per day can be taken towards bystander expenses since the accident was in the year 2006. Hence, under the head of bystander expenses, claimant is entitled to get Rs.4,800/(200x24). Deducting the amount already awarded, the balance would be **Rs.3,000/-** (4,800-1,800). Towards pain and suffering, Rs.12,000/already awarded by the Tribunal. In view of the nature of injuries and 24 M.A.C.A No. 958 of 2013 **8** days inpatient treatment undergone by the claimant, I am of the view that Rs.15,000/- can be awarded towards pain and suffering. Deducing the amount already awarded, the balance would be **Rs.3000/-** (15,00012,000). 16. The learned counsel further contended that no amount was awarded towards loss of amenities. Taking into account the facts and circumstances, **Rs.10,000/-** can be awarded towards loss of amenities. 17. Towards permanent disability, claimant is entitled to get Rs.49,140/- (3,500x12x13x9/100). Deducing the amount already awarded, the balance would be **Rs.24,840/-** (49,140-24,300). Hence, the claimant is entitled to get an enhanced compensation of Rs. Rs.48,640/(24,840+10,000,3,000+3,000+800+7,000) rounded to **Rs.48,700/-.** 18. In the result, claimant is allowed to realize an enhanced compensation of **Rs.48,700/-** (Forty eight thousand seven hundred only) in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of M.A.C.A No. 958 of 2013 **9** receipt of certified copy of this judgment. 19. The appeal is filed with a petition to condone delay of 107 days. While condoning the delay by order dated 21.12.2021 in C.M.Appl.No.1/2013 (CMAP.No.1167/2013), it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 107 days is excluded. 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, within one month from the date of receipt of a certified copy of this judgment SD/- ## **JUDGE** rps/ The judgment dated 08.03.2022 in M.A.C.A.No.958/2013 stands corrected as follows as per order dated 06.10.2022 in I.A.No.1/2022 in M.A.C.A.No.958/2013. 1) In the second line of para no.17 at page no.8 of the judgment in M.A.C.A.No.958/2013 dated 08.03.2022, Rs.49,140/- M.A.C.A No. 958 of 2013 **10** (3,500x12x13x9/100) is corrected as Rs.34,020/(3,500x12x9x9/100). 2) In the third line of para no.17 at page no.8 of the judgment, the balance amount shown as Rs.24,840/- (49,140-24,300) is corrected as Rs.9,720/- (34,020-24,300). Hence, the enhanced compensation of Rs.48,640/- (24,840+10,000+3,000+3,000+800+7,000) is corrected as Rs.33,520/- (9,720+10,000+3,000+3,000+800+7,000), rounded to Rs.33,550/- (Rupees thirty three thousand five hundred and fifty only) after striking off Rs.48,700/-. 3. In paragraph No.18 at page no.8 of the judgment, in the result portion, the enhanced compensation of Rs.48,700/- (Rupees Forty eight thousand seven hundred only) is corrected as Rs.33,550/(Rupees thirty three thousand five hundred and fifty only). Sd/- ## **JOINT REGISTRAR**