Vinod T.V. v. Sherif S/o Majeed and A.K. Ashraf and The Oriental Insurance Company Limited

## **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. 1043 OF 2012** **AGAINST THE AWARD DATED 29.07.2011 IN OPMV 372/2008 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** **VINOD T.V. AGED 29 YEARS SON OF VENUGOPAL, RESIDING AT THOPPINARUKIL HOUSE, PANAKKAPARAMBU, EROOR P.O., NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SRI.G.ARUN GOPAN SMT.K.N.RAJANI SRI.J.VIVEK GEORGE** ## **RESPONDENTS/RESPONDENTS:** **1 SHERIF S/O.MAJEED, PADUVATHIL HOUSE, 3/126, KADUNGALLUR (VIA), ALUVA, PIN-683 101. 2 A.K.ASHRAF S/O.KUNJUMUHAMMED, NJATTUVETTIL HOUSE, NEAR BINANIPURAM POLICE STATION, BINANIPURAM P.O., KADUNGALLUR VILLAGE, ERNAKULAM DISTRICT, PIN-683 502. 3 THE ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE, ERNAKULAM, COCHIN-682 018.** **SRI. V.P.K PANICKER - R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1043 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the Award passed in O.P. (M.V.)No.372/2008 on the file of Motor Accidents Claims Tribunal, Ernakulam out of injury sustained by the appellant in a motor accident occurred on 16.11.2007 at about 4.00 pm due to hit by a Tipper Lorry bearing Registration No. KL-8/Z-9739 at Kozhivettumveli Junction, Eroor. It is alleged that the accident happened due to rash and negligent driving of the Tipper Lorry by the 2[nd] respondent. 1[st] respondent is the registered owner of the offending vehicle and third respondent is the insurer. A total compensation of 6,12,000/- was claimed which was limited to Rs.4,00,000/-. 2. Before the Tribunal, respondents 1 and 2 remained exparte. 3[rd] respondent filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence attributed against 2[nd] respondent is denied. Compensation claimed under various heads are contended to be excessive and exorbitant. 3. Exts.A1 to A12 marked from the side of the appellant. There is no oral evidence from either side. On evaluating the pleadings as M.A.C.A No. 1043 of 2012 **3** well as documents, Tribunal came to a conclusion that 2[nd] respondent is responsible for the accident and hence 1[st] respondent is held vicariously liable for the acts of the 2[nd] respondent. 3[rd] respondent insurer is directed to indemnify the first respondent, insured. Total compensation of Rs.1,83,561/- was also awarded. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellant approaches this Court in appeal for various grounds stated in the memorandum of appeal. 5. Adv. Sri. V.P.K.Panicker filed vakalath on behalf of the third respondent. Heard the learned counsel for the appellant and the learned counsel for the insurer. Lower court records were called for and perused. 6. According to the learned counsel for the appellant, the appellant sustained serious injuries and had undergone 45 days inpatient treatment on various occasions, but compensation awarded under various heads are very low and hence he seeks for enhancement of compensation on all heads. 7. Counsel for the 3[rd] respondent on the other hand contended M.A.C.A No. 1043 of 2012 **4** that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 8. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the Apex court has elaborately discussed the general principles relating to compensation in injury cases. In personal injury cases, heads under which 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 detail. 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. 9. 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, M.A.C.A No. 1043 of 2012 **5** 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). 10. 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. 11. Claimant alleged to be a welder and monthly income of Rs.3500/ claimed is accepted by the Tribunal and that can be approved. 12. In the present case, appellant produced Ext.A6 wound certificate issued from Medical Trust Hospital, Ernakulam. As per Ext.A6, appellant sustained following injuries; ## 1. Comminuted fracture D/3-M/3 junction of (L) Tibia. ## 2. segmental fracture (L) Fibula. M.A.C.A No. 1043 of 2012 **6** 3. Contusion on the occipital region. 4. Lacerated wound (r) upper arm. 5. Lacerated wound on the (L) upper arm, (L) thigh, (L) leg etc. Ext.A7 is the discharge reference card issued from Co-operative Medical College Hospital, Kochi which would prove inpatient treatment from 16.11.2007 to 20.11.2007. On request of patient, he was referred to higher center. Ext.A8 is the discharge summary issued from Medical Trust Hospital, Ernakulam proving admission from 16.01.2008 to 28.01.2008. Treatment given are ORIF with 8 hole 4.5 broad LCP + Bone grafting post OP care, antibiotics, analgesics. He has produced medical bills for Rs.1,13,456/-. 13. Ext.A12 is the disability certificate issued by the Medical Board certifying 3% whole body permanent physical disability as per Mc Bride's scale. 14. According to the learned counsel, though claimant has undergone 45 days inpatient treatment, Tribunal awarded loss of earning only for three months. Taking into account the fact that the injured had undergone 45 days inpatient treatment and also had M.A.C.A No. 1043 of 2012 **7** undergone surgeries loss of earning for six months is seems to be reasonable. Therefore, under the head of loss of earnings, the claimant is entitled to get Rs.21,000/- (3,500 x 6). Deducting the amount already awarded balance would beRs.10500/ ( 21,00010,500) 15. Tribunal awarded Rs.500/- towards transportation. Records produced from the side of the appellant show that he had undergone inpatient treatment on three occasions. So, an amount of Rs.2,000/- can be awarded towards transportation charges. Deducting the amount already awarded, the balance would be **Rs.1,500/-** (2,000-500). Only Rs.400/- has been awarded by the Tribunal towards extra nourishment. Taking into account the fact that he had undergone 45 days inpatient treatment including surgery, an amount of Rs.4,500/- can be awarded towards extra nourishment. Deducting the amount already awarded, the balance would be **Rs.4,100/-** (4,500-400). Towards the bystander expenses, the Tribunal awarded Rs.5,625/-. The accident occurred in the year 2007. So towards the by stander expenses, claimant is entitled to get Rs.250/- per day. On that head, claimant is entitled to get enhanced compensation of Rs.11,250/- (250x45). Deducting the M.A.C.A No. 1043 of 2012 **8** amount already awarded, balance would be **Rs.5625/-** (11,2505,625). Towards pain and suffering, Rs.18,000/- has been awarded by the Tribunal. He had undergone 45 days inpatient treatment. He sustained serious injuries involving Comminuted fracture (L) Tibia, segmental fracture (L) Fibula. So, towards pain and suffering, an amount of Rs.25,000/- is seems to be reasonable. Deducting the amount already awarded, the balance would be **Rs.7,000/-** (25,00018,000). Towards loss of amenities, Rs.12,000/- already awarded by the Tribunal. It can be enhanced to Rs.20,000/-. Deducting the amount already awarded, the balance would be **Rs.8,000/-** (20,00012,000). Hence, the claimant is entitled to get enhanced compensation of Rs.36,725/(10,500+1,500+4,100+5,625+7,000+8,000) rounded to **Rs.36,800/-** . 16. In the result, appeal allowed and claimant is allowed to realize enhanced compensation of **Rs.36,800/-** (Thirty six thousand eight hundred only) in this appeal, which will carry interest at the rate of 6.5% per annum from the date of petition till realization. 3[rd] respondent/insurer is directed to pay the enhanced 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. M.A.C.A No. 1043 of 2012 **9** 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. SD/- **M.R.ANITHA, JUDGE** rps/