Vinodan S/O Sankunny Panikkar (late) v. Mani, Santosh M. and United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **MACA NO. 174 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 895/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **OTTAPPALAM** ## **APPELLANT/PETITIONER:** **VINODAN.S S/O.SANKUNNY PANIKKAR (LATE), KALARIKKAL P.O., ELANADU, CHELAKKARA. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN** ## **RESPONDENTS/RESPONDENTS:** **1 MANI AGED 30 YEARS, S/O.NOT KNOWN, 13, KRISHNASWAMY NAGAR, RAMANATHAPURAM, COIMBATORE-641670, (RIDER OF MOTOR CYCLE KL-9/N-8842). 2 SANTHOSH M. S/O.MANI 10/196 VADAKKEDATH HOUSE, P.O.CHATHAMANGALAM, NENMARA, 678 508, PALAKKAD, (OWNER OF MOTOR CYCLE KL-9/N-8842). 3 UNITED INDIA INSURANCE COMPANY LTD. I.G.TOWER, 2ND FLOOR NEAR BUS STAND, NENMARA, PALAKKAD-678508, (POLICY NO.101204/31/07/01/00001381, VALID FROM 9/6/07 TO 8/6/08).** ## **OTHER PRESENT:** **SRI.JOHN JOSEPH VETTIKKAD-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.174/2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.895/2007 on the file of Motor Accidents Claims Tribunal, Ottappalam (in short, the Tribunal). Claim petition has been filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) claiming compensation of Rs.2,26,500/- which was limited to Rs.2,00,000/-, for the injury sustained by the appellant in a motor accident occurred on 24.6.2007 while the appellant was travelling on the pillion of motorcycle bearing Reg.No.KL-49 924, due to hit with another motorcycle KL-9/N-8842 at Madappallur. 2. It is alleged that the accident happened due to the rash and negligent driving of the offending vehicle by the first respondent. Second respondent is the owner and third respondent is the insurer of the vehicle. 3. Before the Tribunal first and second respondents MACA No.174/2012 3 remained ex parte. Third respondent insurer filed written statement denying the negligence attributed against the first respondent and contended that the accident happened due to the negligence of the rider of the motorcycle on which the appellant was travelling. But the policy coverage with respect to the offending vehicle is not denied. 4. This case was tried along with O.P. (M.V.)No.904/2007 and a common Award was passed. 5. Exts.A1 to A17 and Ext.B1 marked. Appellant was examined as PW1. After evaluating the evidence and other facts and circumstances, the Tribunal found that the first respondent was responsible for the accident and second respondent held liable for the acts of the first respondent and third respondent, insurer was held liable to indemnify the second respondent. A total compensation of Rs.80,000/- was awarded by the Tribunal. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal appellant approaches this Court for MACA No.174/2012 4 the various grounds stated in the memorandum of appeal. 7. Advocate Sri.John Joseph Vettikkad appeared on behalf of the third respondent, insurer. Since the policy coverage with respect to the offending vehicle is admitted, notice to the first respondent was dispensed with. Second respondent was duly served, but there was no appearance. 8. Heard the learned counsel for the appellant as well as the Standing Counsel for the third respondent insurer. Lower court records were called for and perused. 9. According to the learned counsel, appellant is a worker in petrol pump. He claimed monthly income of Rs.4,000/-. But the Tribunal took the monthly income as Rs.3,000/-, which according to him, is very low. He would also contend that the appellant sustained severe head injury and disability certificate assessing 8% permanent disability was produced and it was marked without objection. Inspite of that the Tribunal did not accept Ext.A17 disability certificate. That has caused prejudice to the appellant. Hence he seeks for MACA No.174/2012 5 enhancement of compensation on all heads. 10. Learned Standing Counsel on the other hand would contend that a just and reasonable compensation has already been awarded and hence no interference is called for at the instance of this Court. 11. As per the averments in the claim petition, appellant has been working in a petrol pump and getting monthly income of Rs.4,000/-. Appellant was examined as PW1. During evidence he deposed that his monthly income was Rs.6,000/-. But no document has been produced to prove the actual income. Moreover in the claim petition he has claimed Rs.4,000/- as the income. So the pleadings and evidence are not consistent. 12. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] , the Hon'ble 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/-. In Syed MACA No.174/2012 6 Sadiq 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 take 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/-. So in view of the above settled principles of law, the income of Rs.4,000/- claimed by the claimant in the petition can be accepted. Accordingly the monthly income is taken as Rs,4,000/-. 13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of MACA No.174/2012 7 earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. 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. 14. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary MACA No.174/2012 8 damages (general damages). 15. In paragraph No.5 of the above decision, 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 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 MACA No.174/2012 9 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. 16. In this case the claimant produced, copy of discharge certificates, Ext.A2 & A8 issued from Jubilee Mission Medical College and Research Institute, Thrissur in which the diagnosis was head injury; right basifrontal haemorrhagic contusion, brain stem contusion, diffuse subarachnoid haemorrage. He has undergone inpatient treatment for 17 days. CT of head had showed right basifrontal haemorrhagic contusion, diffuse cerebral oedema and SAH and brain stem contusion. Rpt CT (25.06.2007) showed slight increase in size of right basifrontal contusion, oedema less. Rpt CT (28/06/07) showed Right frontal and peri sylvian contusion same size, peri sylvian oedema +. It would also reveal that the claimant had undergone surgery right frontotemporal craniotomy, evacuation of haematoma and frontal lobectomy under GA. The operative findings is that dura tense, MACA No.174/2012 10 right frontal lobe oedematous. The review is noted on 27.07.2007. It is also stated that he needs regular follow up. So the treatment records produced from the side of the claimant would prove the nature of the injury sustained to the vital part of the claimant as well as the procedures including surgery undergone by him. So the loss of earning granted for one month by the Tribunal is seems to be not reasonable. So loss of earnings for four months is awarded. That will come to Rs.16,000/- [4,000x4]. Deducting the amount already awarded, towards loss of earning, the claimant will get an amount of Rs.13,000/- [16,000-3,000]. 17. Towards bystander expenses, an amount of Rs.3,400/- has already been awarded. The accident was in the year 2007. So Rs.250/- per day can be taken towards bystander expenses. Claimant has undergone 17 days inpatient treatment. Hence towards bystander expenses, claimant is entitled to get Rs.4,250/- [250x17]. Deducting the amount already awarded, the claimant will get Rs.850/ - [4,2503,400]. MACA No.174/2012 11 18. In view of the nature of injuries and the period of treatment and the procedures of treatment undergone by him an amount of Rs.20,000/- can be awarded towards pain and sufferings. Deducting the amount already awarded, balance would be Rs.5,000/[20,000-15,000]. Towards loss of amenities, the amount can be enhanced to Rs.10,000/-. So the balance would be Rs.5,000/- [10,000-5,000]. 19. The learned counsel also would contend that though Ext.A17 disability certificate was marked without objection the Tribunal did not accept the same for computing the disability for the reason that the doctor was not examined. According to him, it was marked without objection. As per Raj kumar, if the Tribunal is not satisfied with the medical evidence produced by the claimant, it is the duty of the Tribunal to refer the claimant to a Medical Board to satisfy about the genuineness of the medical records produced by him. The medical records including the discharge summary would prove that the injury sustained is on the head and he had undergone surgeries and also undergone 17 days inpatient treatment. But at the same MACA No.174/2012 12 time Ext.A17 disability certificate does not say that it is whole body disability. The doctor was also not examined. So in view of the facts and circumstances the 8% disability assessed by the doctor can reasonably be taken as 5% whole body disability. The appellant was 41 years old at the time of accident. Hence as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] as approved by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the suitable multiplier would be '14'. So under the head of disability, claimant is entitled to get Rs.33,600/ - [4000x12x14x5/100]. Hence appellant is entitled to get total enhanced compensation of Rs.57,450/[13,000+850+5,000+5,000+33,600]. 20. In the result, the appellant is allowed to realise enhanced compensation of Rs.57,450/- (Rupees fifty seven thousand four hundred and fifty only), which will carry interest at the rate of 6.5% per annum from the date of petition till realisation (excluding the period of 316 days delay caused in filing the appeal). The third respondent-insurer is MACA No.174/2012 13 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. Appellant 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** shg