Sasi A.M vs Mujeeb Kochunni
2022 Latest Caselaw 5304 Ker

              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. 1828 OF 2012
AGAINST THE AWARD DATED 16.4.2012 IN OP (MV) No.1677/2009 ON THE
         FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM
APPELLANT/APPLICANT:

             SASI A.M.
             S/O.MADHAVAN (LATE) NEDIYAKALAYIL HOUSE,
             PERUMPAIKADU P.O, KOTTAYAM.
             BY ADVS.
             SHRI.ANANDA RAJAN.N
             SRI.K.K.MANGALANANDAN
             SRI.PRATHEUSH.M.ANAND


RESPONDENTS/RESPONDENTS:

     1       MUJEEB KOCHUNNI
             MUNAS MANZIL, MARIYATHURUTHU P.O,
             AYMANAM, KOTTAYAM.
     2       THE PROPRIETOR, PAYYIL DEPARTMENT STORE,
             VEGETABLE MARKET, KOTTAYAM.
     3       THE NEW INDIA ASSURANCE COMPANY LTD
             REPRESENTED BY THE DIVISIONAL MANAGER, DIVISIONAL
             OFFICE, KOTTAYAM.
             BY ADVS.
             SMT.M.K.SHIMI
             RAJAN P.KALIYATH
             SRI.BIMAL K.NATH
             SRI.SREEVALSAN.V
             SRI.D.SREENATH

             ADV.SUBRAHMANIAN NAMBOOTHIRI-R1 AND R2,
             ADV.RAJAN. P. KALIYATH- 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.1828 OF 2013

                                   2




                             JUDGMENT

Dated this the 20th day of May, 2022

This appeal has been filed against the award passed in

O.P.(M.V) No.1677/2009 on the file of Principal Motor Accidents

Claims Tribunal, Kottayam (in short Tribunal). The claim petition has

been filed under Section 166 of the Motor Vehicles Act, 1988 (in short

the Act) towards compensation for the injury sustained by the

appellant/claimant (hereinafter be referred as the claimant) in an

accident was occurred on 07.1.2009 at about 2.30 p.m., while the

claimant was travelling in a Mahindra Champion goods career

autorickshaw bearing Registration No.KL.5/R 5957 driven by the first

respondent along the Changanassery-Kollakadavu road. The

autorickshaw overturned and claimant sustained grievous injuries.

Immediately he was taken to the Century Hospital, Mulakuzha and

from there he was taken to Pushpagiri Medical College Hospital,

Thiruvalla. It is alleged that accident happened due to the rash and

negligent driving of the autorickshaw by the 1 st respondent. 2nd

respondent is the owner and 3rd respondent is the insurer of the MACA NO.1828 OF 2013

offending vehicle. The claim was for a total amount of Rs.11,39,000/-

which was limited to Rs.8,00,000/-.

2. Before the Tribunal, respondents Nos.1 and 2 remained

ex-parte. 3rd respondent/insurer alone filed written statement

admitting the policy coverage with respect to the offending vehicle.

Rashness and negligence on the part of the 1 st respondent is denied.

The compensation claimed under various heads are also contended

to be excessive .

3. PW1 examined and Exts.A1 to A16 and Ext.X1 marked

from the side of the claimant. There was no evidence for the

respondents. Tribunal on evaluating the evidence and facts and

circumstances, came to a conclusion that the accident happened due

to the rash and negligent driving of the 1 st respondent and 2nd

respondent/owner was held vicariously liable for the acts of the 1 st

respondent. The 3rd respondent/insurer was held liable to indemnify

the 2nd respondent for the act of the 1 st respondent. The Tribunal

awarded a total compensation of Rs.3,45,506/-.

4. Dissatisfied with the quantum of compensation awarded by MACA NO.1828 OF 2013

the Tribunal, claimant came up in appeal before this Court on various

grounds stated in the memorandum of appeal.

5. Adv.Rajan P Kaliyath, appeared on behalf of the 3 rd

respondent/insurer. Adv.Subramanian Namboodhiri, appeared on

behalf of the respondents 1 and 2. Heard the learned counsel for the

claimant and also the learned counsel for the respondents 1 to 3.

Lower court records were called for and perused.

6. According to the learned counsel for the claimant, the

claimant was a sales man, earning a salary of Rs.10,000/- per

month. PW1, the employer was examined and the salary certificate

also produced. But the Tribunal taken the income notionally as

Rs.5,000/-, which according to him is very low. He would also

contend that very serious injuries have been sustained by the

claimant, but compensation awarded is very low. The learned counsel

further would contend that the claimant was aged 53 years at the

time of accident, but the Tribunal taken the age as 56 wrongly for

computation of compensation towards permanent disability. Hence,

the learned counsel prays for enhancement of compensation on all MACA NO.1828 OF 2013

heads.

7. The learned Counsel for the respondents on the other

hand would contend that a just and reasonable compensation has

been awarded by the Tribunal and no interference is called for at the

instance of this Court.

8. The first aspect is with regard to the age of the claimant.

Tribunal has taken the age as 56 years. The claimant produced

Ext.A10 attested copy of the third page of the S.S.L.C. Book. It would

prove that his date of birth is 10.11.1954. The accident was on

07.1.2009, so on the date of accident he has not completed 55 years.

He was 54 years only and hence, the age of the claimant is taken as

54.

9. The next contention is with regard to the income.

Rs.10,000/- has been claimed as monthly income. PW1, the

employer was examined to prove the income. Ext.A13 is the

Employment certificate issued by him. But the Tribunal has not

accepted the evidence of PW1 and certificate issued by him. It has

come out from the evidence of PW1 that he is the Proprietor of Payyil MACA NO.1828 OF 2013

Department Stores, Kottayam. During cross examination he admitted

that he has got 17 staff and there is attendance register. But he is

not keeping any wage register. Ext.A13 certifies that he was paying a

monthly salary of Rs.9,000/- to the claimant. There was no

supporting documents like wage register or voucher for proving the

salary of the claimant as Rs.9,000/-. So the Tribunal rightly refused

to accept the evidence of PW1 and Ext.A13 Employment Certificate.

10. As per Ramachandrapa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [(2011) 13 SCC 236], the

Hon'ble Apex Court has notionally fixed the monthly income of a

coolie in an accident occurred in the year 2004 at Rs.4,500/-. In

Syed Sadiq v. Divisional manager, United India Insurance Co.

Ltd. [(2014) 2 SCC 735] the Apex Court taken the monthly income

of a vegetable vendor as Rs.6,500/- per month with respect to an

accident of the year 2008.

11. In the present case, the accident occurred on 07.1.2009.

Hence monthly income of the claimant can notionally be taken as

Rs.7,000/-.

MACA NO.1828 OF 2013

12. 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 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 MACA NO.1828 OF 2013

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.

14. 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).

15. 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 MACA NO.1828 OF 2013

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 the present case, the claimant sustained crush injury

left foot with half of foot amputated, soft tissue loss anterior part of

ankle and leg lower third, lacerated wound and exposed bone leg

upper 3rd left. Ext.A5 is the copy of the wound certificate.

17. Tribunal already awarded loss of earnings for 6 months

that can be maintained and loss of earnings for 6 months can be re-

fixed as Rs.42,000/- (Rs.7,000x6). Deducting the amount already

awarded, balance would be Rs.12,000/- (Rs.42,000-30,000).

18. The learned counsel for the claimant would contend that

claimant produced salary certificate of the wife as Ext.A11 to show

that she had availed earned leave for 88 days from 08.1.2009 to

05.4.2009 for nursing her husband. The Tribunal awarded

Rs.25,788/- towards bystander expense. Admittedly, the period of

inpatient treatment undergone by the claimant is only for 10 days.

There is no evidence to substantiate that he required the assistance MACA NO.1828 OF 2013

of bystander to meet his requirements for 88 days. Claimant did not

even enter the box and adduced any evidence in that regard.

Hence, Ext.A11 salary certificate of the wife of claimant cannot be

accepted to calculate bystander expense. However, Tribunal already

awarded Rs.25,788/-, that is maintained.

19. Next is with regard to the compensation towards

permanent disability. Ext.X1 is the disability certificate of Medical

Board certifying 30% permanent disability, that has been adopted by

the Tribunal and that is approved. It has already been found that the

actual age of the claimant was 54 years at the time of accident. The

proper multiplier to be applied as per Sarla Verma (Smt.) & Ors. v.

Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]

followed in Reshma Kumari & Ors. v. Madan Mohan & Anr.2013

(9) SCC 65), approved by the Constitutional Bench in National

Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662

(SC)] is '11'. Hence, towards permanent disability, the claimant

would be entitled to get Rs.2,77,200/- (Rs.7,000x12x11x30/100).

Deducting the amount already awarded, balance would be MACA NO.1828 OF 2013

Rs.1,31,400/- (Rs.2,77,200-1,45,800).

20. Towards pain and suffering, Tribunal awarded

Rs.40,000/-. In view of the grievous nature of injuries involving

amputation of half of the foot of one of the legs, towards pain and

suffering compensation of Rs.50,000/- is seems to be reasonable.

Deducting the amount already awarded balance would be

Rs.10,000/- (Rs.50,000-40,000).

21. Towards loss of amenities, Tribunal already awarded

Rs.30,000/-. In view of the nature of injuries as well as his

occupation Rs.40,000/- is awarded towards loss of amenities.

Deducting the amount already awarded, balance would be

Rs.10,000/- (Rs.40,000-30,000). Hence, the claimant is entitled to

get enhanced compensation of Rs.1,63,400/- (Rs.1,31,400 + 12,000

+ 10,000 + 10,000).

22. In the result, appeal allowed by enhancing compensation

to Rs.1,63,400/- (Rupees one lakh sixty three thousand four

hundred only) which will carry interest @ 6% per annum from the

date of petition. The 3rd respondent/insurer shall satisfy additional MACA NO.1828 OF 2013

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.

23. The disbursement of enhanced compensation to

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 the Bank account details

(attested copy of relevant page of bank pass book, Bank Account

number and IFSC code of the branch) before the Tribunal with a copy

to the Standing Counsel for the insurer, within one month from the

date of receipt of certified copy of this judgment.

Sd/-

M.R.ANITHA JUDGE SMF