Viswanathan s/o Kuppuswami v. Shanthi w/o Kannan and Ors. (MACA 1165 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943** ## **MACA NO. 1165 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 561/2006 OF MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** **VISWANATHAN S/O.KUPPUSWAMI, RESIDING AT P. O. KOTTAPPAY, GURUVAYUR, THRISSUR DISTRICT BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **1 SHANTHI W/O.KANNAN,TRUSTEE, M/S.SARASWATHY MARI HIGH SCHOOL, AMMAN NAGAR, ATHUR SALEM DISTRICT, TAMILNADU 636 102 2 A .KANNAN S/O.ARUMUGHAN S.M,RESIDING AT DOOR NO 15/324, KANTHASWAMY NAGAR, P O VINAYAKAPURAM, ATHUR TALUK, SALEM DISTRICT, TAMILNADU 636 102 3 THE ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED 46, WHITES ROAD, CHENNAI-600 014 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.RUPA MARIAM THOMAS** ## **OTHER PRESENT:** ## **SRI. JACOB MATHEW-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1165/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P. (M.V)No.561/2006 on the file of the Motor Accidents Claims Tribunal, Thrissur. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation on account of the injury sustained by the appellant/claimant (hereinafter be referred as the claimant) in a motor accident occurred on 18.07.2005 at Kottappady. A total compensation of Rs.4,28,500/- was claimed, which was limited to Rs.4,00,000/-. 2. It is alleged that the accident happened due to the rash and negligent driving of the car with registration No.TN-30/W1234 driven by the 2[nd] respondent. Immediately after the accident, he was taken to Allied Hospital, Kunnamkulam and from there to Medical College Hospital, Thrissur, where he undergone treatment. First respondent is the R.C.owner of the car and third respondent is the insurer of the car. 3. Before the Tribunal respondents 1 and 2 remained MACA.No.1165/2013 3 exparte. Third respondent – insurer filed written statement admitting the policy coverage with respect to the offending vehicle. The incident is disputed and it is contended that the claimant sustained injury out of fall in a ditch and not out of a road traffic accident. The claims under various heads are also disputed. 4. PW1 examined and Exts.A1 to A9 and Ext.X1 were marked from the side of the claimant. Exts.B1 and B2 were marked from the side of the respondents. 5. The Tribunal on evaluating the materials produced from the side of the claimant as well as the pleadings found that the claimant sustained injury out of a road traffic accident and the incident occurred due to the rash and negligent driving of the 2[nd] respondent. The third respondent insurer was held liable to make good the loss sustained by the insured, the first respondent as per the contract of insurance. Under various heads, the Tribunal awarded Rs.1,51,000/- with interest at the rate of 8% per annum. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant came up in appeal before this Court on various grounds stated in the MACA.No.1165/2013 4 memorandum of appeal. 7. Since the 3[rd] respondent has admitted the insurance policy, notice to respondents 1 and 2 dispensed with at the risk of the appellant. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the third respondent - Insurance Company. Lower Court Records were called for and perused. 8. Though the accident and the resultant injuries to the claimant is denied by the third respondent, the Tribunal found that the injuries were sustained out of road traffic accident and second respondent-driver of the car was held responsible for the incident. There is no cross appeal filed by the third respondent and hence the only dispute before this Court is with regard to the quantum of compensation awarded by the Tribunal. 9. According to the learned counsel for the claimant, monthly income has been claimed as Rs.5,500/-, which ought to have been allowed since the claimant was a Head load Worker. But as rightly contended by the learned counsel for the third respondent the averment in the claim petition as well as the award passed by the Tribunal would go to show that the occupation of the claimant is styled as coolie. No evidence as MACA.No.1165/2013 5 such has been adduced to prove the monthly income of the claimant. 10. 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 the ground realities prevailing at the relevant point of time. MACA.No.1165/2013 6 11. 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. 12. In this case the accident occurred on 18.07.2005. The claimant is a coolie, aged 30 years. As per the settled position of law, an amount of Rs.5,000/- can reasonably be fixed notionally as the monthly income of the claimant. 13. The main dispute is with regard to the disability sustained and the amount of compensation fixed by the Tribunal under the head of loss of earning power. The doctor, who issued MACA.No.1165/2013 7 the disability certificate, has been examined as PW1 and the certificate is marked as Ext.A9. But inspite of the same, the Tribunal adopted only 15% whole body disability. The doctor deposed that claimant has dislocation of cervical vertebra C4/C5 with quadri parasis and he was treated with skull traction. His complaints were pain and stiffness on neck and inability to do hard work and manual work. It is also stated that there are numbness both upper and lower limbs. According to the doctor, claimant had neurological disability of 85% and the permanent disability of whole body is assessed as 23%. 14. Learned counsel for the insurer on the other hand would contend that the certificate is not issued by a Medical Board. The doctor is an Assistant Professor of Orthopedics attached to Government Medical College, Thrissur. So the percentage of disability at 15 adopted by the Tribunal is only to be maintained. 15. 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 MACA.No.1165/2013 8 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 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 MACA.No.1165/2013 9 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 of the above judgment, 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 : - MACA.No.1165/2013 10 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. PW1 has deposed in tune with the certificate issued by him. Though he was cross examined at length, it was mainly with respect to the road traffic accident and as to whether the injuries are sustained out of RTA. No question as such challenging the percentage of disability and assessment of disability are seen to have been put during cross examination. So in effect there is nothing to discredit the testimony of PW1, the doctor, with regard to the permanent whole body disability certified by him at 23%. So I do not find any justification in Tribunal fixing the permanent disability of whole body at 15%. In Raj Kumar's case, the Apex Court has categorically held that if at all the Tribunal is not satisfied with the medical evidence produced by the claimant MACA.No.1165/2013 **==> picture [15 x 8] intentionally omitted <==** it can constitute a medical board and refer the claimant to such Medical Board for assessment of the disability. So without resorting to that procedure, I do not find any justification in Tribunal unilaterally reducing the percentage of disability to 15% inspite of the fact that the doctor who issued the disability certificate has been examined as PW1 and nothing could be brought out to discredit his testimony and the certificate Ext.A9 issued by him. So I am of the view that the permanent disability of whole body at 23%, assessed by the doctor, has to be accepted. 19. Claimant was 30 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 '17' and not '16' as applied by the Tribunal. Thus the compensation towards future loss of earning power is Rs.2,34,600/- [5000x12x17x23/100]. Deducting the amount already awarded, balance is **Rs.1,48,200/** - [2,34,600-86,400]. 20. In view of the nature of injuries and disability as well as the period of treatment undergone by the claimant, loss of MACA.No.1165/2013 12 earning for five months awarded by the Tribunal seems to be just and reasonable. So re-fixing the amount towards the loss of earning the amount would be Rs.25,000/- [5,000x5]. Deducting the amount already awarded, the balance would be **Rs.10,000/-** [25,000-15,000]. Though the claimant had undergone inpatient treatment for 43 days, no amount is seen awarded towards extra nourishment. So an amount of **Rs.2,000/-** is awarded towards extra nourishment. There was no claim for enhancement of compensation under other heads. 21. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.1,60,200/-** (Rupees one lakh sixty thousand two hundred only) [1,48,200+10,000+2,000], which will carry interest at the rate of 7.5 **%** per annum from the date of petition till realisation (excluding the period of 110 days delay caused in filing the appeal). The **third respondent** insurer shall satisfy 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, after deducting the liability of the appellant/claimant towards Balance Court Fee. The disbursement of additional compensation to MACA.No.1165/2013 13 appellant/claimant 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, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. Parties shall bear their respective costs. ## **Sd/-** **M.R.ANITHA** shg **JUDGE**