Kerala High Court
Abdul Nazar P @ Nazar vs G. Thankappan on 20 May, 2022
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. 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
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
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
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
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
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
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
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
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
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
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
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
