VIJAYAKUMAR S/O. SHIVA RAMAKRISHNAN v. P.K.ABOOBACKER, AHARAF PARAKKATTU HOUSE, THURUTH, ALUVA, and UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943** **MACA NO. 421 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 1094/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **VIJAYAKUMAR S/O. SHIVA RAMAKRISHNAN, RAMANATTU HOUSE, CHOWARA KARA, CHOWARA VILLAGE, ERNAKULAM DISTRICT, PIN-683571.** **BY ADVS. SRI.T.M.RAMAN KARTHA SRI.ARUN BASIL SRI.M.C.SREERENJITH** ## **RESPONDENTS/RESPONDENTS:** **1 P.K.ABOOBACKER S/O. KUNJU MUHAMMED, PATTERY HOUSE, PURAYAR, DESOM P.O., PIN-683102.** **2 AHARAF PARAKKATTU HOUSE, THURUTH, ALUVA, PIN-683101.** **3 UNITED INDIA INSURANCE CO. LTD. PUTHUSSERY COMPLEX, NEAR GOVT. HOSPITAL, ALUVA, PIN-683101.** **BY ADVS. SRI.V.G.ANTONY SMT.P.K.SANTHAMMA SRI.K.P.SURESH KUMAR SRI. JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.421/2013 2 ## **JUDGMENT** The appellant is the claimant in O.P.(M.V.)No.1094/2006 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The claim petition was filed under Section 166 of the Motor Vehicles Act, for the injury sustained to the claimant in a motor vehicle accident occurred on 17.11.2005. 2. It is alleged that on 17.11.2005 while the appellant/claimant (hereinafter be referred as the claimant) was riding a motorcycle through Purayar – Puthuvankunnu road a maruti omni van bearing No.KL-7/AF 5101 driven by the first respondent in a rash and negligent manner came from the opposite direction and hit against the motorcycle No.KL-7/D-4217 driven by the claimant, resulting in serious injuries to him. Immediately he was taken to Karothukuzhi hospital, Aluva and treated there as an inpatient till 22.11.2005. It is alleged that the accident happened due to the rash and negligent driving of the first respondent, the driver of the omni van. Second respondent is the owner of the offending vehicle and third respondent is the insurer. A total amount of Rs.2,60,000 was claimed, which was limited to Rs.2 lakhs. M.A.C.A.No.421/2013 3 3. Before the Tribunal, first and second respondents remained exparte. Third respondent insurance company filed written statement admitting the policy coverage with respect to omni van bearing No.KL-7/AF-5101, rashness and negligence from the part of the first respondent is denied. It is also contended that the accident occurred solely due to the rash and negligent riding of the motorcycle by the claimant. There is also allegation of contributory negligence against the claimant. The claimant was also put to strict proof regarding the averments of the age, occupation and income claimed in the petition. It is also contended that the compensation claimed under various heads are highly exorbitant. 4. On the side of claimant Exts.A1 to A15 were marked. Ext.B1 Policy copy was marked from the side of the 3[rd] respondent. There is no oral evidence from either side. On evaluating the pleadings as well as the documents produced from either side the Tribunal awarded a total amount of Rs.62,980/- with 8% interest and held the third respondent insurer liable. It is found that the accident happened due to the rash and negligent driving of the omni van by the first respondent and held respondents 1 to 3 are jointly and severally liable and insurance company held liable to make good the M.A.C.A.No.421/2013 4 loss. 5. Dissatisfied with the quantum of amount awarded, the claimant came up in appeal before this Court for the various grounds stated in the memorandum of appeal. 6. Though Respondent No.1 and 2 were duly served, there was no appearance on behalf of them. Learned Standing Counsel appeared on behalf of the third respondent Insurance Company. 7. Heard both sides. 8. There is no dispute regarding the finding of rashness and negligence on first respondent and liability of the insurer. The only dispute is with regard to the quantum of compensation awarded by the Tribunal. 9. According to the learned counsel for the claimant, the claimant was a mechanic by profession, which has been proved by Ext.A13. Though no details regarding salary has been provided, the Tribunal notionally fixed the monthly income as Rs.3,000/-, which, according to him, is very low. He would also contend that the compensation awarded for the loss of earning for three months, transportation charges, extra nourishment, bystander expenses, M.A.C.A.No.421/2013 5 damage to clothings, loss of amenities and pain and suffering are very low comparing to the injury and loss sustained by the claimant. Hence, he seeks for enhancement of compensation on the various heads. 10. The learned counsel for the third respondentinsurance company on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. Hence he seeks for dismissal of the appeal. 11. The claimant produced Ext.A13 issued by the manager of the workshop to prove that he had been working in a workshop. It is certified therein that he had been on leave from 17.11.2005 to 10.3.2006. The actual salary is not stated in Ext.A13 certificate. Manager was also not examined. So the Tribunal cannot be found fault with in not accepting the same. However admittedly the accident took place in the year 2005. 12. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 M.A.C.A.No.421/2013 6 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. 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. 13. In Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], taking note of the earlier decision in Ramachandrappa's case, the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected M.A.C.A.No.421/2013 7 to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 14. Taking into account the fact that the accident in this case was occurred in the year 2005 and the cost of living and other relevant factors and especially Ext.A13 document proving that he had been working as a mechanic in a workshop, I am of the view that the monthly income of the claimant can notionally be fixed as Rs.5,000/per month. 15. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the 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 M.A.C.A.No.421/2013 8 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. 16. 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). 17. 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. In cases of serious injuries, where there is specific medical evidence M.A.C.A.No.421/2013 9 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). 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. 18. The claimant produced Exts.A10 to 12 to prove the injuries and the treatment undergone by him. The wound certificate reveals that he had sustained contusion on right hip and contusion and abrasion on right knee and dislocation of right hip with fracture head of femur. Ext.A11 discharge summary would prove that he had been undergone treatment from 17.11.2005 to 22.11.2005, total 6 days. The diagnosis is also noted as posterior dislocation of right hip M.A.C.A.No.421/2013 10 and fracture head of femur. Though Ext.A12 has been produced to show that estimate of expenditure for implant removal as Rs.20,000/-, no corresponding bills haven been produced and hence cannot be acted upon. However, taking into account the nature of injuries and the period of treatment undergone by the claimant, loss of earning for 4 months can be fixed, instead of 3 months calculated by the Tribunal. That will come to Rs.20,000 [5000x4]. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.11,000/-** [20000-9000]. 19. Towards transportation charges, Tribunal awarded Rs.500/- against the claim of Rs.5,000/-. In view of the nature of injuries and procedures to be followed, transportation charges is enhanced to Rs.1,500/-. So the balance enhanced amount towards transportation charges is **Rs.1,000** /-. Towards extra nourishment, according to the claimant, he has been bed ridden for quite a long time due to the fracture of head of femur and dislocation of right hip. So towards extra nourishment, Rs.2,500/- can reasonably fixed. Deducting the amount already awarded, the enhanced amount will be **Rs.1,000/** - [2500-1500]. Towards damage to clothing, an amount of Rs.250/- alone was granted. The accident happened in the year 2005. M.A.C.A.No.421/2013 11 So it is enhanced to Rs.500/-. Deducting the amount already awarded, the balance will be **Rs.250** /-. Towards bystander expenses only Rs.500/- has been awarded. It has come out from the discharge summary that he has been under treatment for six days. Since the accident happened in the year 2005, per day bystander's expense can be taken as Rs.200/- per day. So under that head the claimant will be entitled to get Rs.1,200/-. Deducting the amount already awarded, the enhanced amount will be **Rs.700** /- [1200-500]. It is further contended by the learned counsel that the accident and the resultant injuries has caused pain and sufferings to the claimant and only an amount of Rs.16,000/- has been awarded towards pain and suffering. Taking into account the nature of injuries i.e fracture of head of femur and dislocation right hip, the amount towards pain and suffering is enhanced to Rs.20,000/-. So the balance will be **Rs.4,000** /- [20000-16000]. Towards loss of amenities, actually the claimant has not produced any disability certificate, however the tribunal awarded Rs.12,000/-. Taking into account the facts and circumstances, that is enhanced to Rs.15,000/-. Deducting the amount already awarded, the amount towards loss of amenities will be **Rs.3,000** /- [15000-12000]. M.A.C.A.No.421/2013 12 20. So, in total, the enhanced compensation would be **Rs.20,950/** - (Rupees twenty thousand nine hundred and fifty only) [11000+1000+1000+250+700+4000+3000] in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition i.e.21.06.2006 till realisation. 21. The award will show that the claim petition was dismissed for default on 25.5.2011 as per the order in I.A.2737/2011 and it was restored to file on 24.3.2012 and the Tribunal excluded interest for the said period that would be maintained here also. The appeal also filed with a delay of 76 days. At the time of allowing C.M.Appln.No.1/2013 this Court has clarified that, if at all the appeal is ultimately allowed, the claimant will not be entitled for interest for the said period of 76 days. So that 76 days also will be excluded while computing interest. 22. Respondent No.3 is directed to pay 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. 23. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook M.A.C.A.No.421/2013 13 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. There will be no order as to costs. Sd/- **M.R.ANITHA** **JUDGE** shgx