V.V. Karunakaran v. P. M. Sulaiman Patharathil Kizha kkethil Sooranadu North; ThaHa A.S.; The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946** ## **MACA NO.280 OF 2013** **ARISING OUT OF THE AWARD DATED 24.07.2012 IN OPMV NO.1269 OF 2008 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT:** **V.V.KARUNAKARAN AGED 77 YEARS S/O. VELU, VIJAYA NIVAS, 'KRISHNA KRIPA', VENNALA.P.O., VENNALA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI SRI.J.VIVEK GEORGE** ## **RESPONDENTS:** **1 P.M.SULAIMAN PATHARATHIL KIZHAKKETHIL SOORANADU NORTH.P.O., KARUNAGAPPALLY, KOLLAM DISTRICT-690561. 2 THAHA A.S. S/O. ABDUL SALAM, THENGINTHOTTATHIL HOUSE, WARD NO.9, THAMARAKKULAM PANCHAYAT MAVELIKKARA.P.O., PIN-690101. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED DIVIONAL OFFICE, M.G.ROAD, COCHIN-682016. BY ADVS. SMT.RAJI T.BHASKAR, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A.No.280/2013 ## **JUDGMENT** _Dated this the 12[th] day of April, 2024_ The appellant, aged 77 years, who was the claimant in OP (MV) No. 1269 of 2008 on the file of the Additional Motor Accidents Claims Tribunal (hereinafter referred to as the 'Tribunal'), Ernakulam, has filed this MACA seeking enhancement of compensation awarded to him by the Tribunal vide Award dated 24.07.2012. 2. Facts leading to the MACA in brief : On 02.01.2008, while walking along the western side of the Alappuzha - Ernakulam National Highway, appellant was hit by a Tata Sumo Van bearing registration No. KL-03/E 6222 driven by the 2[nd] respondent. The accident caused serious injuries to the appellant and he was first treated at Lakshmi Hospital, Aroor, and subsequently at General Hospital, Ernakulam. The accident occurred due to the rash and negligent driving by the 2[nd] respondent and the appellant preferred the above OP (MV) seeking compensation. The 1[st] respondent in the OP (MV) is the registered owner of the vehicle, 2[nd] respondent is the driver and the 3[rd] respondent is 3 M.A.C.A.No.280/2013 its insurer. Appellant sought a total compensation of Rs.2,00,000/- in the OP (MV) jointly and severally from respondents 1 to 3. Upon notice, the 3[rd] respondent insurance company entered in appearance in the OP (MV) and filed a written statement. Respondents 1 and 2 remained _ex parte_ . Issues were duly framed by the Tribunal. Exts.A1 to A8 were marked by the appellant. The Tribunal after trial, awarded an amount of Rs.10,652/- as compensation. Aggrieved by the Award, this MACA is filed seeking enhancement of compensation. 3. Heard Smt. Rajani K.N., learned counsel appearing for the appellant and Smt. Raji T. Bhaskar learned counsel appearing for respondents 2 & 3. Notice to R1 had been dispensed with. 4. Contentions of the counsel for the appellant are as follows: # Though the Tribunal rightly concluded that the accident was caused due to the negligence of the 2[nd] respondent driver, it erred in arriving at the compensation due and payable. 4 M.A.C.A.No.280/2013 # Appellant was a coconut plucker by profession and for assessing compensation under the head of loss of earnings, his notional income ought to have been fixed at Rs.3,000/-. # Taking note of the nature of the injuries suffered by the appellant, the compensation for pain and suffering awarded ought to have been Rs.60,000/- instead of Rs.3,000/- awarded. #Based on Ext.A4 Accident register cum wound certificate, the appellant ought to have been awarded an amount of Rs.5,000/- towards extra nourishment. # Amount of Rs.7,152/- awarded under the head of medical expenses, is inadequate taking note of the injuries suffered and Rs.15,000/- would have been the reasonable figure. #Amount of Rs.500/- granted by the Tribunal towards 'transport to hospital' is inadequate and an amount of Rs.5,000/- is fit to be allowed. # Tribunal erred in not awarding any compensation under the heads of 'loss of amenities and enjoyment in 5 M.A.C.A.No.280/2013 life', 'compensation for continuing and permanent disability', 'attendant expenses', 'damage to clothing' and 'compensation for loss of earning power' # Compensation awarded is totally inadequate, unreasonable and erroneous. 5. Per contra Smt.Raji.T.Bhaskar, learned counsel appearing for the insurance company, submits that just and reasonable amounts have been awarded by the Tribunal in the facts and circumstances of the case and that the award of the Tribunal does not merit any interference. 6. Contentions are considered as hereunder: 7. On 'loss of earnings' : As regards the 'loss of earnings' claimed by the appellant, I note that the claim raised for an amount of Rs.40,000/- is not substantiated by the claimant in the OP (MV). Though appellant claims to be pursuing the avocation of a 'coconut plucker', no evidence in the said respect has been produced. Since the appellant could not prove the income, notional income as per the dictum laid down by the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance** 6 M.A.C.A.No.280/2013 [(2011) 13 SCC 236] has to be arrived at. Taking note of the fact that the accident occurred in the year 2008 and following the dictum laid down by the Hon'ble Supreme Court in the said case, notional monthly income of the appellant is arrived at Rs.6,500/- per month. Towards loss of income for one month, an amount of Rs.6,500/- is thus allowed. Appellant is entitled to loss of earnings computed on the said monthly income of Rs.6,500/-. 8. On 'shock, pain and suffering' and 'loss of amenities': Exhibits A4 to A8 produced by the appellant reveal that he was taken to the hospital immediately after the accident and that CT scans of the brain and cervical spine were taken. Injuries sustained by the appellant and the treatment undergone by him stands proved by the said documents. The appellant was an inpatient for six days in various hospitals. Though the appellant had sought an amount of Rs.60,000/- under the head of 'shock, pain and suffering', the Tribunal has allowed only an amount of Rs.3,000/-. Injuries occasioned, as stated in the award include 'Head injury and B/L Fronto parital subdural effusion'. 7 M.A.C.A.No.280/2013 ## In **Benson George v. Reliance General Insurance Co.** **Ltd. & Anr.** [2022 KHC 6232], the Hon'ble Supreme Court has held that there cannot be straight jacket formula regarding compensation to be awarded under the heads of pain and suffering and loss of amenities. It depends on the circumstances of each case and it varies from person to person who has suffered due to the accident. Taking note of the injuries sustained by the appellant, it is just and reasonable that the amount awarded by the Tribunal under the head 'shock, pain and suffering' is enhanced from Rs.3,000/- to Rs.7,000/-. The appellant is thus entitled to an additional amount of Rs.4,000/- under the head 'shock, pain and suffering'. 9. The Tribunal has not granted any amount towards loss of amenities. The Hon'ble Supreme Court in **Benson** ## **George v. Reliance General Insurance Co. Ltd. & Anr.** has held that _“loss of amenities and happiness suffered by the claimant and his family members also depend upon various factors, including the position of the claimant post accident and whether he is in a position to enjoy life and / or_ 8 M.A.C.A.No.280/2013 _happiness which he was enjoying prior to the accident. To what extent the claimant has lost the amenities in life and the happiness will depend on the facts of each case.”_ Taking note of the facts and circumstances of the case of the appellant, his age and nature of injuries suffered by him, it is just and reasonable that an amount of Rs.10,000/- is granted towards loss of amenities. 10. Other heads: Counsel for the appellant has raised a contention that the Tribunal erred in not awarding any amounts under the heads of extra nourishment, by stander expenses and damage to clothing and that in the facts and circumstances of the case, the claimant is legitimately entitled to amounts under the said heads too. In **Rajkumar v. Ajay Kumar and others** (2011 (1) SCC 343), the Hon'ble Supreme Court has laid down the heads under which compensation is to be awarded for personal injuries. Under pecuniary damages, it includes _inter alia_ expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. The Tribunal has not awarded any amounts towards extra nourishment, by 9 M.A.C.A.No.280/2013 stander expenses and damage to clothing which can be reasonably expected to have been incurred by the appellant in the facts and circumstances of the case. Bearing in mind the dictum laid down by the Hon'ble Supreme Court in K **.** **Suresh v. New India Assurance Company Ltd. & Ors.** (2012 (12) SCC 274) that _“the quintessentiality lies on the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation”_ it is just, fit and proper that an amount of Rs.1,000/- is allowed to the appellant towards extra nourishment and an amount of Rs.500/- towards damage to clothing in the facts and circumstance of the case. Based on the same reasoning, taking note of the fact that the appellant was inpatient in hospitals for six days towards by stander expenses an amount of Rs.200/- per day totalling to Rs.1,200/- is allowed. 11. The appellant is thus entitled to the following amounts under the respective heads: |Sl.No.|Head of Claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Amount modified<br>and recalculated<br>by this Court (Rs.)| |---|---|---|---| |1|Transportation expenses|500/-|500/-| |2|Expense for treatment|7,152/-|7,152/-| 10 M.A.C.A.No.280/2013 |3|Loss of income for one<br>month|Nil|6,500/-| |---|---|---|---| |4|Loss of amenities|Nil|10,000/-| |5|Shock, Pain and Sufferings|3,000/-|7,000/-| |6|Extra nourishment|Nil|1,000/-| |7|Damage to clothing|Nil|500/-| |8|Bystander fee for 6 days|Nil|1,200/-| ||Total|10,652/-|33,852/-| The said amount will carry interest at the rate of 7.5% from the date of O.P.(MV). Amounts, if any, paid under these heads may be adjusted. The MACA is thus allowed. The Award dated 24.07.2012 in O.P. (MV) No.1269 of 2008 of the Motor Accidents Claims Tribunal, Ernakulam is modified granting an additional compensation of Rs.23,200/- and the said amount shall be deposited by the 3[rd] respondent with interest at the rate of 7.5% from the date of the OP (MV) with proportionate cost within a period of three months from the date of receipt of a copy of this Judgment. Sd/- **SYAM KUMAR.V.M. JUDGE** csl