IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
MACA NO. 1326 OF 2012
AGAINST THE ORDER/JUDGMENT IN OP(MV) 1368/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
MANJERI
APPELLANT/PETITIONER:
ABDUL NAZAR P @ NAZAR
S/O SAIDALI, POOVATHI HOUSE, NALLOOR, P.O. THACHINGANADOM, VIA
PATTIKKAD, NENMINI VILLAGE, PERINTHALMANNA TALUK, MALAPPURAM
DISTRICT.
BY ADVS.
SRI.K.M.SATHYANATHA MENON
SRI.P.YADHU KUMAR
RESPONDENTS/RESPONDENTS:
1 G. THANKAPPAN
S/O GNANA MANI, 89, NARASIMMA NACKEN STREET, PAPANACKEN PALAYAM,
COIMBATORE, TAMIL NADU STATE, PIN-641 013.
2 S. RADHAKRISHNAN
PROPRIETOR, RVS TRANSPORT, 21-CR SUNDARAM BROS LAYOUT, TRICHY ROAD,
RAMANATHAPURAM, COIMBATORE-641 045, TAMIL NADU.
3 THE ORIENTAL INSURANCE COMPANY LIMITED
SUGUNA BUILDING, IIND FLOOR 707, AVINASHI ROAD, COIMBATORE-641 018,
TAMIL NADU.
OTHER PRESENT:
SMT. K.S SANTHI-R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.1326/2012
2
JUDGMENT
This appeal has been filed against the Award passed in O.P.(M.V)No.1368/2008 on the file of the Motor Accidents Claims Tribunal, Manjeri. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.5,00,000/-, on account of the injury sustained by the appellant/claimant in a motor accident.
2. It is alleged that the accident occurred on 16.06.2008 at about 6.45 p.m due to hit with a stage carriage bus bearing Reg.No.TN-37/AF 2697 while the appellant was riding a motorcycle bearing Reg.No.KL-10-Q 2273 from Thadagam - Anakatty road. It is alleged that the accident happened due to the rash and negligent driving of the first respondent. Second respondent is the owner of the offending vehicle and third respondent is the insurer. MACA No.1326/2012 3
3. Before the Tribunal, respondents 1 and 2 remained ex parte. Third respondent, insurer filed written statement admitting the policy coverage with respect to the offending vehicle. But Rashness and negligence on the part of the first respondent was denied.
4. Exts.A1 to A9 series and Ext.X1 marked from the side of the appellant. There was no oral evidence from either side.
5. Tribunal on evaluating the pleadings as well as the documents found that the first respondent is responsible for the accident and second respondent, insured is held vicariously liable for the acts of the first respondent and third respondent insurer was directed to indemnify the second respondent, insured and a total compensation of Rs.1,93,558/- was awarded.
6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, appellant came up in appeal before this Court for various grounds stated in the memorandum of appeal.
MACA No.1326/2012 4
7. Adv. Smt.K.S. Santhi appeared on behalf of the third respondent. Notice as against respondents 1 & 2 was dispensed with.
8. Heard the learned counsel for the appellant as well as learned counsel for the third respondent. Lower Court records were called for and perused.
9. According to the learned counsel for the appellant, the appellant was a trader of second hand vehicles and claimed a monthly income of Rs.6,000/- but the Tribunal taken the monthly income as Rs.3,500/-, which, according to him, is very low. He would also contend that very serious injuries have been sustained by the appellant. He had undergone inpatient treatment for 42 days. An amount of Rs.59,358/- has been spent towards medical expenses. Medical Board certified 36% permanent disability. But arbitrarily Tribunal found that since the appellant is a trader in second hand vehicles and is not doing any manual work the disability manifested cannot have an adverse fall out on his earning capacity and only Rs.1,00,000/- has been awarded towards loss of amenity and MACA No.1326/2012 5 functional disability, which according to him has caused prejudice to the appellant. Hence he seeks for enhancement of compensation on all heads.
10. Learned counsel for the insurer on the other hand would contend that just and reasonable compensation has already been awarded by the Tribunal and no enhancement is required at the instance of this Court.
11. First aspect to be considered is with regard to the income. No evidence both oral or documentary has been adduced by the appellant to prove the income. However the accident occurred in the year 2008. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court taken the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. Following that principles, in Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735] the Apex Court taken the monthly income of a vegetable vendor in an accident occurred in the year 2008, as Rs.6,500/-.
MACA No.1326/2012 6
12. In the present case, since the accident was on 16.06.2008 the monthly income of Rs.6,000/- claimed by the appellant is seems to be reasonable and ought to have been accepted by the Tribunal. Hence the monthly income of the appellant is taken as Rs.6,000/- per month.
13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] 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 speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held MACA No.1326/2012 7 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 damages (general damages). In paragraph No.5, 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.
15. 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 MACA No.1326/2012 8 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).
16. 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.
17. In this case the appellant produced Ext.A2 wound certificate and Ext.A3 discharge summary. Ext.A2 wound certificate would show that the appellant sustained head injury - right parietal extradural haematoma, fracture - radius and ulna left forearm, fracture - neck of humerus - left shoulder, multiple superficial abrasions over forehead, right knee and right hip. Ext.A3 is the discharge summary which would prove that subsequently he has been admitted from 21.06.2008 to 28.07.2008 at EMS Memorial Co-operative Hospital & Research Centre Ltd., Perintalmanna. Ext.A3 would MACA No.1326/2012 9 reveal that in x-ray showed comminuted fracture neck of humerous (L) and both bone fracture forearm. C.T.Brain on 09.07.2008 shows SDH (R) Temporal lobe post surgical change in (R) Temporal. Course in the hospital would state as follows: He was admitted with H/o RTA with Head injury. H/o surgery on 17.06.2008. (R) Parietal EDH craniotomy & evacuation] done at Ramakrishna Hospital Coimbatore. Surgery for fracture neck of humerous (L) & (L) forearm done on 23.06.2008. [ORII with LCP (2) humerous, ORIF with DCP (L) FA]. It is further stated that he was managed in ICU and ward. Physiotherapy was also given.
18. Ext.X1 is the certificate issued by the District Medical Board, Government General Hospital, Manjeri and on examination the Board noted the injuries aforementioned and on examination the following details were shown: (L) shoulder- flexion external rotation, abduction and adduction one restricted by 40o, 60o and 90o respectively. Moderate reduction of muscle strength - left shoulder. (L) elbow flexion - extension-terminal restriction. His permanent locomotor MACA No.1326/2012 10 disability (L) upper limb is 34%. He was also shown in psychiatric wing and psychiatric disability is assessed as 4% and total permanent disability is fixed as 36%.
19. The treatment records and the disability certificate would speak in volumes the seriousness of the injuries sustained by the appellant as well as the prolonged treatment and procedures undergone by him. But the Tribunal awarded only Rs.1,00,000/- in lump sum towards functional disability and at the same time it has been found that since the appellant is not doing any manual work and is a trader of second hand vehicles the disability cannot have an adverse fall-out on his earning capacity. I do not find any rational in the observation of the Tribunal. It has been found that he is a trader of second hand vehicles. So the nature of his work itself would require physical strain as well as mental strain for effectively conducting the trade. Since the certificate is also issued by a Medical Board certifying 36% permanent disability, I am of the considered view that the disability assessed by the Medical Board can be taken for assessment of MACA No.1326/2012 11 compensation towards functional disability. Hence compensation to be awarded can be re-fixed as follows:
20. The monthly income of the claimant has already been taken as Rs.6,000/-. Tribunal awarded loss of earnings for three months. But the appellant had undergone total inpatient treatment for 42 days. He had sustained grievous injuries and permanent disability of 36% has also been certified and accepted by this Court. Hence loss of earnings for four months is seems to be reasonable and it is awarded. Hence the amount would be Rs.24,000/- [6,000x4]. Deducting the amount already awarded, balance would be Rs.13,500/- [24,000-10,500].
21. According to the learned counsel, the amount awarded towards bystander expenses is very low. He had undergone inpatient treatment for 42 days. The accident was in the year 2008. Hence Rs.250/- per day can be taken towards expenses of bystander. So towards bystander expenses, appellant is entitled to get enhanced compensation of Rs.10,500/- [250x42]. Deducting the amount already awarded, MACA No.1326/2012 12 balance would be Rs.6,300/- [10,500-4,200].
22. The learned counsel would also contend that no amount has been awarded towards extra nourishment. He had undergone inpatient treatment for 42 days. So an amount of Rs.4,200/- can be awarded towards extra nourishment.
23. The appellant was found to be 33 years old by the Tribunal. Though in the claim petition the age was alleged as 30 years the finding of the Tribunal with respect to the age is not further challenged. So the age of the appellant is taken as 33 years. 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 '16'. Hence compensation towards permanent disability would be Rs.4,14,720/- [6000x12x16x36/100]. The Tribunal already awarded Rs.100,000/- towards functional disability and loss of amenities, that is to be deducted towards disability head. So the balance amount would be Rs.3,14,720/- [4,14,720- 1,00,000].
MACA No.1326/2012 13
24. According to the learned counsel, the amount awarded towards pain an sufferings is very low. Taking into account the period of treatment and the nature of injuries sustained by the appellant an amount of Rs.20,000/- is awarded towards pain and suffering. Deducting the amount already awarded balance would be Rs.5,000/- [20,000-15,000]. Towards loss of amenities an amount of Rs.15,000/- is also awarded.
25. In the result, the appellant is allowed to realise enhanced compensation of Rs.3,58,720/-
[13,500+6,300+4,200+3,14,720+5,000+15,000], which is rounded off to Rs.3,58,750/- (Rupees three lakhs fifty eight thousand seven hundred and fifty only) which will carry interest at the rate of 6% per annum from the date of petition till realisation. The third respondent, insurer shall satisfy the additional compensation granted in this appeal, together with interest deducting the amount due towards balance court fee, within a period of two months from the date of receipt of certified copy of this judgment.
MACA No.1326/2012 14 The disbursement of additional compensation to appellant 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 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 certified copy of this judgment. Parties shall bear their respective costs.
Sd/-
M.R.ANITHA JUDGE shg