Shibinlal M.K vs K.P.Ummer S/O.Cheriyamuhammed Haji

M.R.Anitha, J

The appellant is the claimant in O.P.(M.V) No.910/2006 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1998 (in short the Act) towards compensation for the injury sustained by the appellant/claimant (hereinafter be referred as the claimant).

It is alleged that on 15.02.2006 at about 2.00 p.m., while the claimant was riding a motor cycle bearing registration No.KL-11/W 5186 from Mukkam to Omassery and reached at Neeleswaram, lorry bearing registration No.KL-12/9477 hit the motor cycle and claimant sustained grievous injuries. Immediately he was taken to Santhi Hospital, Omassery. He had undergone inpatient treatment there for 12 days. The accident happened due to the rash and negligent driving of the 2nd respondent lorry driver. 1st respondent is the owner of the offending vehicle and 3rd respondent is the insurer. The claim is for a total amount of Rs.2,00,000/-.

Before the Tribunal, 3rd respondent insurer alone contested the matter. Policy coverage with respect to the lorry is admitted. The allegations regarding the negligence and injuries as well as the claim under various heads are denied.

There was no oral evidence from either side. A1 to A5 marked from the side of the claimant along with Exhibit C1, disability certificate issued by the Medical Board. Tribunal on evaluating the pleadings as well as the materials produced, came to a conclusion that the accident happened due to the rash and negligent driving of the offending vehicle by the 2nd respondent. 3rd respondent Insurance Company was held liable to pay the compensation. The Tribunal awarded a total compensation of Rs.1,76,339/-.

The compensation awarded by the Tribunal under various heads are as follows:

Compensation allowed at different heads

Amount awarded Rs.

Transport

750-00

Extra nourishment

500-00

Loss of earnings

4,000-00

Bystander's expenses

1,200-00

Compensation allowed at different heads

Amount awarded Rs.

Treatment expenses

56,209-00

Pain and suffering

10,000-00

Permanent disability

1,03,680-00

Total

1,76,339-00

Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal.

Heard the learned counsel for the appellant and also the learned Standing Counsel for the third respondent, Insurance Company. Lower court records were called for and perused.

According to the learned counsel for the claimant, the claimant was an Engineering student aged 23 years. He sustained grievous injuries due to the accident. The compensation awarded by the Tribunal under various heads are very low. It is also contented that the monthly income has been notionally fixed as Rs.2,000/-which according to the learned counsel for the claimant is very low. The claimant has got specific contention that the claimant was a student and a part time teacher also.

The learned Standing Counsel on the other hand would contend that just and reasonable compensation has already been awarded by the Tribunal under various heads and no interference is called for at the instance of this Court. It is true that the claimant could not produce any documents as such to prove the income.

In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time.

In Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735] taking note of the earlier decision in Ramachandrappa's case, the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month.

The learned counsel for the insurer would contend that even in the appeal memorandum the claim is to take the income at least as Rs.3,000/-. In this case, the accident occurred on 15.2.2006. Claimant was alleged to be an Engineering student. But the age, income and occupation is denied by the insurer in the written statement. Though claimant is alleged to be an Engineering student, no document to substantiate that he is an Engineering student is produced by the claimant. Hence, in view of the facts and circumstances, I find it just and proper to take the monthly income claimed in the petition as Rs.5,000/- per month.

The learned counsel relies on   Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] wherein 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 (`Act' for short) 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.

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.

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).

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.

It has come out that the claimant has undergone inpatient for 12 days at Santhi Hospital, Omassery. The claimant has sustained following injuries: Fracture mandible, sub condylar, transverse fracture ® femur mid 3rd, fracture patella ® comminuted fracture of lower end of radius with fracture styloid process of ulna-B/L, lacerated wound chin 10x1x1 cm, palm (L) 6x2x1 cm and poly trauma cerebral concussion. Exhibit A3 is the discharge summary.

According to the learned counsel for the claimant, in view of the serious nature of injuries sustained by the claimant loss of earnings for 2 months calculated by the Tribunal is very low. Exhibit C1 disability certificate issued by the Medical Board would also give a detailed analysis of the assessment of disability sustained by the claimant. The Medical Board fixed 24% occupation disability. So in view of the nature of injuries and the disability assessed by the Medical Board, loss earning for 4 months appears to be just and reasonable. So, towards loss of earning claimant is entitled to get Rs.5,000x4=Rs.20,000/-. Deducting the amount already awarded the balance would be Rs.16,000/- (Rs.20,000-4,000).

The next contention of the learned counsel is with regard to the amount awarded towards permanent disability. The Tribunal rightly adopted the occupational disability as certified in Exhibit C1 certificate. Hence, towards future loss of earning power claimant is entitled to get Rs.5,000x12x18x24/100=Rs.2,59,200/-. Deducting the amount already awarded the balance would be Rs.1,55,520/- (Rs.2,59,200-1,03,680).

It is further contented that the claimant sustained very serious injuries including several fractures, but amount awarded towards pain and suffering is very low. No amount is awarded towards loss of amenities also. So, taking into account the nature of injuries including fractures sustained by the claimant, an amount of Rs.20,000/- seems to be just and reasonable towards pain and suffering. Deducting the amount already awarded the balance would be Rs.10,000/- (Rs.20,000-10,000). Towards Loss of amenities an amount of Rs.15,000/- is awarded. Towards bystander expense the Tribunal awarded Rs.100/- per day, the accident was in the year 2006. Rs.200/- per day can be taken towards bystander expense. Hence, towards bystander expenses claimant is entitled to get Rs.2,400/- (Rs.200x12). Deducting the amount already awarded, the claimant is entitled to get Rs.1,200/- (Rs.2,400-1200). So, the claimant is entitled to get enhanced compensation of Rs.1,55,520 + 16,000 + 15,000 + 10,000 + 1,200 = 1,97,720/-. It will be rounded to Rs.1,97,700/-.

In the result, appeal allowed in part by enhancing compensation to an amount of Rs.1,97,700/- (Rupees one lakh ninety seven thousand seven hundred only) which will carry interest @ 7.5% per annum from the date of petition excluding the period of delay of 671 days in filing the appeal. The 3rd respondent, Insurance Company, shall satisfy additional 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.

The appellant 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.

There will be no order as to costs.