Kerala High Court

V.V.Karunakaran vs P.M.Sulaiman on 12 April, 2024

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
     FRIDAY, THE 12TH 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:
 M.A.C.A.No.280/2013                       2



                                  JUDGMENT

Dated this the 12th 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 2nd 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 2nd 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, 2nd respondent is the driver and the 3rd respondent is

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 3rd 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.

# 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

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

[(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'.

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

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

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 Amount modified by the Tribunal and recalculated (Rs.) by this Court (Rs.)

1 Transportation expenses 500/- 500/-

2 Expense for treatment 7,152/- 7,152/-

3 Loss of income for one Nil 6,500/-

month

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