Vinod P.V. v. Saji Cheriyan, Josemon and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943** **MACA NO. 1065 OF 2014** **(AGAINST THE AWARD DATED 31.10.2013 IN O.P.(MV) NO.656/2011 ON THE** **FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA)** ## **APPELLANT/PETITIONER:** **VINOD P.V., S/O.VENU, PANACHICKAL HOUSE, KAYYOOR KARA, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.MANU TOM** ## **RESPONDENTS/RESPONDENTS:** - **1 SAJI CHERIYAN, S/O.CHERIYAN, NARIKKUZHIYIL HOUSE, KAYYOOR.P.O., PALA, KOTTAYAM DISTRICT. 686 651.** - **2 JOSEMON, PERIYANICKAL HOUSE, THIDANADU.P.O., KOTTAYAM.686 123.** **3 THE MANAGER, ORIENTAL INSURANCE CO. LTD., ATHIYALIL PLAZA, MUNDAKKAYAM, KANJIRAPPALLY, KOTTAYAM DISTRICT. 686 507. BY ADVS. SRI.P.C.HARIDAS SRI.BIMAL K.NATH TITUS MANI SRI.BIMAL K.NATH SMT.DIVYA C BALAN SMT.M.K.SHIMI SRI.SREEVALSAN.V SRI.D.SREENATH** **ADV.P.C.HARIDAS - R1 ADV. SUBRSMANIAN NAMBOOTHIRI - R2, ADV.TITUS MANI - R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1065 of 2014 2 ## **JUDGMENT** The appellant is the claimant in OP(MV).656/2011 on the file of Motor Accident Claims Tribunal, Pala. Claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injury sustained to the petitioner in a motor vehicle accident occurred on 24.4.2011. 2. According to the appellant/claimant on 24.4.2011 while he was trvelling in an autorickhaw bearing registration No.KL-05/H 2467 through Privithnam-Kayyoor road, due to the rash and negligent driving of autorickshaw by the driver, the 1[st] respondent, the appellant/claimant fell down and sustained severe injuries and he was taken immediately to Government Hospital, Pala, and from there he was taken to Chazhikkat Hospital, Thodupuzha. Thereafter, he had undergone medical treatment in Holi Family Hospital, Muthalakod. He had undergone inpatient treatment for total 22 days. It is alleged that the accident occurred due to rash and negligent driving of the 1[st] respondent. 2[nd] respondent is the owner of the MACA.No.1065 of 2014 3 autorickshaw and 3[rd] respondent is the insurer. The claim petition has been filed for a total amount of Rs.5,11,000/which was limited to Rs.4,00,000/- 3. Before the Tribunal the 2[nd] respondent remained exparte. 1[st] and 3[rd] respondent filed written statement. 1[st] respondent denied rashness and negligence on his part. 4. The 3[rd] respondent insurer admitted the policy coverage with respect to the offending vehicle No.KL-05/H 2467 autorickshaw during the relevant time. 5. It is also contended that the amount of compensation claimed under various heads are highly excessive. The appellant was also put to strict proof regarding the age, occupation and the income alleged in the claim petition. It is contended that injury sustained will not result in the reduction in earning capacity. 6. Appellant/claimant got examined himself as PW1 and Exts.A1 to A12 were marked from the side of the claimant. Ext.X1, disability certificate was also marked. 7. On evaluating the evidence both oral and documentary, the Tribunal found that the accident occurred MACA.No.1065 of 2014 4 due to rash and negligent driving of the 1[st] respondent, the driver of the autorickshaw. Since the policy coverage is not disputed, the third respondent Insurance Company was held liable to pay the compensation. The Tribunal awarded a total compensation of Rs.2,30,300/- with interest at the rate of 7.5% per annum from the date of petition, ie, 30.6.2011 till realization. 8. Dissatisfied with the award passed by the Tribunal, appellant/claimant (hereinafter referred as claimant) came up in appeal challenging the quantum of compensation awarded under various heads. 9. Adv.P.C.Haridas, appeared on behalf of the 1[st] respondent. Adv.Subramanian Namboodiri, appeared on behalf of the 2[nd] respondent. The learned Standing Counsel, Adv.Titus Mani, appeared on behalf of the third respondent Insurance Company. Lower court records were called for and perused. Heard both sides. 10. According to the learned counsel for the claimant he was a painter having monthly income of Rs.10,000/-. The Tribunal notionally fixed his income as Rs.5,000/-. Which MACA.No.1065 of 2014 5 according to him is very low. Further he contended that the disability certificate Exhibit X1 issued by the Medical Board certifying 18.4% disability was produced and marked but arbitrarily, the disability was taken only at the rate of 8% by the Tribunal. 11. Further, he would contend that no amount was awarded towards loss of amenities. The amount awarded towards pain and suffering is very low. No amount was awarded for damages to clothing. Hence, enhanced compensation is claimed under all those heads. 12. The learned counsel for the respondent on the other hand would contend that just and reasonable compensation has already been awarded by the Tribunal. The monthly income in the absence of any documents was rightly fixed by the Tribunal as Rs.5,000/-. Hence, no interference is called for under any of the heads at the instance of this Court. 13. The compensation awarded by the tribunal under various heads are as follows: MACA.No.1065 of 2014 6 **==> picture [320 x 525] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>25,000-00<br>Loss of earnings<br>(5,000x5)<br>Transport to Hospital 2,150-00<br>Extra-nourishment 2,000-00<br>Damages to clothing Not entitled<br>Treatment Expenses 58,750-00<br>Bystander Expenses 4,400-00<br>(200x22 days)<br>Pain and suffering 30,000-00<br>Permanent Disability 86,400-00<br>(5,000x12x18x<br>8/100)<br>Loss of earning capacity 21,600-00<br>Total 2,30,300-00<br>**----- End of picture text -----**<br> 14. The claimant is examined as PW1, in his chief affidavit, he has categorically stated that his monthly income is Rs.10,000/-. The accident occurred in the year 2011 and his MACA.No.1065 of 2014 7 occupation as painter is not seen disputed during the cross examination also. 15. 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 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 MACA.No.1065 of 2014 8 the ground realities prevailing at the relevant point of time. 16. 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 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. 17. The incident in this case is in the year 2011. so, applying the ratio in the above cited decisions the monthly income of the claimant can reasonably be fixed as Rs.9,000/-. 18. In the case in hand, admittedly the Tribunal taken MACA.No.1065 of 2014 9 the disability at 8%, though Exhibit X1 certificate issued by the Medical Board has been produced, certifying the disability at 18.4%. 19. In **Karunakaran @ Kannan v. Abdul Rasheed and Others** [ **2015 (5) KHC 355]** full bench of this court has held that there is no hard and fast rule that in all cases, invariably, the Doctor should be examined in order to accept permanent disability certificate issued by him. If Tribunal is satisfied with reasons stated by Doctor and permanent disability certified by him, there is no need for examining the Doctor for accepting disability certificate. 20. Injury sustained by the claimant as noted in the wound certificate, Exhibit A6 would prove that he has Deformity of right thigh, Abrasion back of chest (L), Abrasion postero-lateral aspect of left thigh, pelvis compressioncontused tenderness at right hip. X-ray of fracture of the right ileum, fracture pubic rami, fracture shaft of right femur. He has also undergone 22 days inpatient treatment. The discharge summary Exhibit A8 would prove that Surgery (open reduction and internal fixation and bone grafting done under MACA.No.1065 of 2014 10 spinal anaesthesia on 28.04.2011). 21. The grievous injuries sustained by the claimant and the prolonged treatment undergone by him including two surgeries would justify the certification of 18.4% disability by the Medical Board. 22. In this context, the learned counsel drew my attention to **Manikantan G. v. K.Janardhanan Nair and Ors. [2021 (5) KHC 305]** that was a case in which the claimant produced disability certificate showing permanent disability of Rs.12%. But the Tribunal scaled down the disability percentage to 8% for the sole reason that claimant failed to examine the Doctor. That was held to be not proper, in view of the dictum laid down in **Raj Kumar’s** case. 23. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** Apex Court dealt with the general principles relating to compensation in injury cases in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the MACA.No.1065 of 2014 11 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. 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. 24. 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 MACA.No.1065 of 2014 12 and trauma as a consequence of the injuries. 25. 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, 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). 26. 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. 27. In the present case, Exhibit X1 is the disability certificate issued by the medical board. It would certify 18.4% whole body permanent disability. So, as per **Raj Kumar** if the Tribunal has got any doubt with respect to the certificate MACA.No.1065 of 2014 13 issued by the medical board, he ought to have examined any of the members of the Board. Without doing that, the procedure adopted by the Tribunal in unilaterally fixing the disability at 8% is not seems to be legal and proper and in compliance of the settled position of law. So, disability shown in Exhibit X1 certificate as 18.4% is accepted. 28. The next contention of the learned counsel is with regard to the amount awarded towards loss of earning for five months. Taking into account the period of treatment and the grievous nature of the injuries sustained by the claimant loss of income for 5 months can be maintained, that will come to Rs.9,000 x 5= Rs.45,000/-. Deducting the amount already awarded, the balance would be Rs.20,000/- (Rs.45,00025,000). 29. Claimant was 20 years old at the time of accident. Hence, the multiplier to be applied in the present case would be '18' as rightly adopted by the Tribunal. So the compensation towards the disability and future loss of earning power will be Rs.9000 x 12x 18 x 18.4/100 = Rs.3,57,696/-. Tribunal already awarded Rs.86,400/-. Deducting the amount MACA.No.1065 of 2014 14 already awarded, the balance would be Rs.2,71,296/(3,57,696-86,400). 29. In **Raj Kumar** the Apex court has held that in injury cases where permanent disability has been sustained, claimant is entitled to get compensation towards the loss of amenities. Hence, an amount of Rs.10,000/- is awarded towards loss of amenities. Towards pain and suffering Rs.30,000/- has already been awarded; no enhancement is required under that head. But no amount is awarded towards damage to clothing. Rs.750/- is awarded towards damage to clothing. Hence, the total enhanced compensation is Rs.3,02,046/- rounded off to Rs.3,02,050/- (Rs.2,71,296 + 20,000 + 10,000 + 750). 30. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.3,02,050/- (Rupees three lakhs two thousand and fifty only)** which will carry interest at the rate of 7.5% per annum from the date of petition (30.6.2011) till realisation. 3[rd] respondent shall satisfy the enhanced compensation together with interest at 7.5% from the date of petition, excluding 79 days, the delay caused in filing the appeal within a period of two months from the MACA.No.1065 of 2014 15 date of receipt of certified copy of this judgment. The disbursement of enhanced compensation to appellant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. 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, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. Sd/- ## **M.R.ANITHA JUDGE** SMF