VINOY P.J S/O JOSEPH vs SUBAIR K S/O RAHMAN, RAMLA W/O MOOSA, NEW INDIA ASSURANCE COMPANY KALPETTA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944** ## **MACA NO. 1659 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 575/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **KALPETTA** ## **APPELLANT/PETITIONER:** **VINOY P.J S/O.JOSEPH, POTTENPUZHA HOUSE, VARAMBATTA.P.O., VYTHIRI TALUK. BY ADV SRI.ABRAHAM MATHEW (VETTOOR)** ## **RESPONDENTS/RESPONDENTS:** - **1 SUBAIR K S/O.RAHMAN, KUNIYILKUTH HOUSE, KAVUMANNAM.P.O., WAYANAD DISTRICT. (DRIVER OF THE GOODS AUTORIKSHAW NO.KL-12 C/6944). D.L.NO.12/1134/2005. PIN-673 121.** - **2 RAMLA W/O.MOOSA, PANALI HOUSE, PULINJAL, VELLAMUNDA.P.O., WAYANAD. PIN-670 731. (OWNER OF THE GOODS AUTORIKSHAW NO.KL-12 C/6944)** - **3 NEW INDIA ASSURANCE COMPANY KALPETTA. PIN-673 121. (POLICY NO.760604/31/08/01/00007825) BY ADV P.MURALEEDHARAN** ## **OTHER PRESENT:** ## **SRI.P. MURALEEDHARAN-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1659 of 2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.575/2009 on the file of the Motor Accidents Claims Tribunal, Kalpetta (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation for the injury sustained by the appellant/claimant in a motor accident occurred on 24.09.2009 due to hit with Goods autorickshaw bearing Reg.No.KL 12C 6944 while he was riding a motor bike bearing Reg.No.KL12D/6245. 2. It is alleged that the accident occurred due to the rash and negligent driving of the first respondent, driver of the Goods autorickshaw. Second respondent is the owner of the offending vehicle. Third respondent is the insurer of the offending vehicle. 3. Before the Tribunal, only the third respondent contested the matter by filing written statement. The policy MACA No.1659 of 2012 3 coverage with respect to the offending vehicle is admitted. 4. On the side of the appellant/claimant, Exts.A1 to A11 series and Ext.C1 were marked. There was no oral evidence from either side. 5. The Tribunal on evaluating the pleadings as well as the documents produced from the side of the appellant/claimant found that the accident happened due to the rash and negligent driving of the first respondent, the driver of the goods autorickshaw. Second respondent, being the owner held vicariously liable. Third respondent, insurer is directed to make good the loss sustained by the second respondent. A total compensation of Rs.80,660/- was awarded with interest at the rate of 7.5% per annum from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellant/claimant (hereinafter be referred as the claimant) approaches this Court on various grounds stated in the memorandum of appeal. MACA No.1659 of 2012 4 7. Since the third respondent admitted the policy coverage with respect to the offending vehicle, notice with respect to respondents 1 and 2 was dispensed with. 8. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the third respondent, insurer, Sri.P. Muraleedharan. Lower court records were called for and perused. 9. According to the learned counsel for the claimant, the claimant sustained very serious injuries but the compensation awarded under the various heads are very low and he seeks for enhancement on all heads. 10. The learned Standing Counsel on the other hand would contend that a just and reasonable compensation has already been awarded and no enhancement is required under any of the heads. 11. Admittedly the claimant is working as a school teacher in a Government School. MACA No.1659 of 2012 5 12. 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 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 general principles relating to compensation in injury cases has been dealt with in detail and it has been held MACA No.1659 of 2012 6 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 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. 13. 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). 14. In paragraph No.5 of the above decision, the heads coming under pecuniary damages and non pecuniary damages MACA No.1659 of 2012 7 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 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 MACA No.1659 of 2012 8 the effect thereof on the future life of the claimant. 15. Claimant had undergone total 11 days inpatient treatment. Ext.A6 series discharge summaries show that the claimant was admitted on 24.09.2009 at Leo Hospital, Kalpetta and was discharged on 26.09.2009. Thereafter he was admitted at MIMS Hospital, Kozhikode on 26.09.2009 till 01.10.2009 and as per the discharge summary, final diagnosis is intercondylar eminence fracture left knee, depressed fracture lateral tibial plateau left knee. X-ray showed comminuted displaced intercondylar eminence fracture left tibia. CT scan also showed intercondylar eminence fracture and depression of posterior half of lateral condyle. Open reduction, intercondylar eminence fixation and lateral condyle elevation done under spinal analgesia on 28.09.2009. Again he was admitted at MIMS Hospital on 03.05.2010 and was discharged on 04.05.2010. He underwent implant removal under short GA on 03.05.2010. The diagnosis was ununited fracture upper tibia. So the above discharge summaries produced from the side of the claimant would prove that he MACA No.1659 of 2012 9 had undergone lengthy procedures and surgeries. So the claimant is entitled to get appropriate compensation for pain and suffering. The Award would show that the Tribunal has granted only Rs.10,000/- towards pain and suffering. In view of the facts and circumstances and the period of treatment and the procedures undergone by him, an amount of Rs.15,000/- is awarded towards pain and suffering. Deducting the amount already awarded, the balance would be Rs.5,000/[15,000-10,000]. Towards loss of amenities, no amount is awarded. Ext.C1 disability certificate issued by the Medical Board would state that the claimant has got complaint of pain left knee joint and difficulty in standing for a long time and speedy walking and partial ankylosis left knee with terminal restriction of flexion and Medical Board certified 4% permanent disability. 16. Admittedly, the claimant is an School Teacher. He will have to stand long time in classes to teach the students. The injury sustained to the left knee and the difficulty in standing and speedy walking etc. would cause difficulties and MACA No.1659 of 2012 10 inconvenience in discharging his duties as a Teacher. So an amount of Rs.10,000/ - is awarded towards loss of amenities. Even though there is no loss of income, the injuries and permanent disability will affect his opportunities in post retirement employment. Hence claimant is entitled to get compensation on that account [See: New India Assurance Company Ltd. v. Satish Chandra Sharma & Anr. (Civil Appeal No.1579/2022 (@SLP(C) No(s). 14350/2019)]. Tribunal granted compensation under that head taking the income notionally as Rs.3,000/- per month. Since the incident was in 2009, the monthly income as per Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] can be taken as Rs.7,000/-. Hence refixing compensation under that head claimant is entitled to get Rs.17,280/[7,000x12x9x4/100-12,960]. Towards bystander expenses, the Tribunal awarded only Rs.1,100/-, taking Rs.100/- per day. Since the accident was in the year 2009, per day, an amount of Rs.250/- can be taken as bystander expenses. So towards bystander expenses, claimant MACA No.1659 of 2012 11 is entitled to get Rs.1,650/ - [250x11 – 1,100]. 17. Towards transportation charges, according to the learned counsel, the claimant produced bills for Rs.10,000/-. But the Tribunal awarded only Rs.5,000/- alleging some duplication in the bills. The discharge summary produced from the side of the claimant would go to show that he was admitted on three occasions for follow up treatment and it is also alleged that he was treated as outpatient also on several other occasions. So an amount of Rs.2,000/- is further awarded towards transportation charges. 18. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.35,930/- [5,000+ 10,000+17,280+1,650+2,000], which is rounded to Rs.35,950/- (Rupees thirty five thousand nine hundred and fifty only), which will carry interest at the rate of 6.5% per annum (excluding 98 days delay caused in filing the appeal) from the date of petition till realisation. Third respondent-insurer is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months MACA No.1659 of 2012 12 from the date of receipt of certified copy of this judgment. 19. 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** ## **shg/**