IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 MACA.No. 1302 of 2004() ------------------------------ OPMV.878/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER : --------------------------------------- LAL, S/O. THANKAPPAN NAIR, PULICKAL HOUSE, KUMARAMANGALAM VILLAGE. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENTS: ----------------------- 1. SABU VARGHESE S/O. KORAH, VADAKKETHADATHIL HOUSE, PAMPAKUDA KARA, ONAKKOOR VILLAGE. 2. MATHEW JACOB, KAILKKUTHUCHAL PUTHENPURAYIL HOUSE, MANNATHOOR P.O. 3. THE UNITED INDIA INSURANCE COMPANY LTD., MUVATTUPUZHA. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C.HARI RANI, JJ. ----------------------------------------------------------------- M.A.C.A. No.1302 of 2004 ---------------------------------------------------- Dated this the 18th day of August, 2011 JUDGMENT R. BASANT,J. Claimant is the appellant. He claimed compensation for the loss suffered by him on account of the personal injuries suffered in a motor accident, which took place on 30.04.1999. Petitioner along with four others, were allegedly engaged in loading and unloading work in the insured lorry. The driver of the vehicle negligently moved the vehicle without cautioning the employees at work. This led to a log of wood falling from the vehicle causing injuries to the left leg of the claimant. The claimant alleged that the accident had taken place solely on account of the negligence of the driver of the vehicle. Accordingly, the compensation was claimed against the driver, owner and insurer of the lorry. 2. The liability of the insurer was not disputed. However, it was contended that the accident had not taken place in the manner alleged by the claimant. A contention was raised that the driver was in no way responsible for the accident. M.A.C.A. No.1302 of 2004 2 3. Parties went to trial on these contentions. The Tribunal against the claim of Rs.1.5 lakhs came to the conclusion that the loss suffered by the claimant is only Rs.43,250/-. However, the court found that the accident and the responsibility for the driver in causing the accident has not been established. Accordingly, the learned Tribunal proceeded to pass the impugned order dismissing the claim of the claimant. 4. The learned counsel for the appellant/claimant and the respondent/Insurance Company have advanced their arguments. The learned counsel for the appellant first of all contends that the conclusion of the Tribunal that the driver of the vehicle was not responsible for the accident is unsustainable. That finding is clearly contrary to the oral evidence of PW1. It deserves to be noted that the respondents have not adduced any contra evidence. The learned counsel for the appellant further points out that the appellant was immediately removed to the hospital and at the hospital a crime was registered on the basis of the F.I. statement given by the appellant to the police. That crime was duly investigated by the police and Ext.A3 final report has been filed wherein specific allegation is raised that the negligence of M.A.C.A. No.1302 of 2004 3 the driver of the vehicle which led to the vehicle moving backwards was the cause of the accident. Ext.A3 final report has been marked. The oral evidence of PWs 1 and 2 is in tandem with such final report Ext.A3. The Tribunal appears to have sailed to the conclusion against the appellant on the basis of the simple fact that the allegation that the driver of the vehicle had moved the vehicle is not specifically stated in the alleged cause narrated to the doctor who prepared Ext.A4 wound certificate. 5. The learned counsel for the appellant argues that the oral evidence of PWs 1 and 2 read along with Ext.A3 final report, must certainly have convinced the court that the version of the appellant can safely be accepted. We are in agreement with the learned counsel for the appellant. The oral evidence of PW1 is perfectly supported by Ext.A3 final report submitted by the police after due investigation. We are in these circumstances of the view, that the Tribunal was not justified in holding that the crucial question can be resolved solely on the basis of the alleged cause narrated to the doctor about the cause of the injury. That log of wood had fallen on the leg of the appellant and that had caused injuries is certainly mentioned in the Wound Certificate. M.A.C.A. No.1302 of 2004 4 The only omission in the statement to the doctor is that the log happened to fall because of the negligent conduct of the driver in moving the vehicle. So much of details certainly must be held to be irrelevant when the alleged cause is narrated to the doctor. We are in these circumstances of the opinion that the oral evidence of PWs 1 and 2 supported by Ext.A3 report submitted by a Public Official must certainly have been accepted. If we should err, we would certainly like to err in favour of the victim in a case like this. 6. The liability of the Insurance Company is not disputed at all. There is no contention that under the policy of Insurance the insurer is not liable to indemnify the owner, if the owner is liable. Therefore, we are satisfied that the third respondent is to be mulcted with the liability to pay compensation to the claimant. 7. We now come to the challenge against the quantum of compensation awarded. The appellant had suffered two injuries which we extract below: 1) Crush injury over the medial side of the left foot with big toe completely supported and hanging by tendon. M.A.C.A. No.1302 of 2004 5 2) Severe communited compound fracture of the lower 1/3 of the left tibia with crushing of the tendon and muscles. He was treated as an in- patient for about one month. 8. The appellant was an inpatient and it is alleged that the appellant was an inpatient from 30.04.1999 to 24.05.1999. The Tribunal accepted that the appellant was inpatient for a period of about one month. The very serious injuries described above have been suffered by the appellant including fracture and crush injury to the left foot with big toe hanging by the tendon. The Tribunal has awarded a total amount of Rs.43,250/- only as per the details shown below: Transport : Rs. 500/- Damage to clothing : Rs. 250/- Extra nourishment : Rs. 500/- Bystander expenses : Rs. 1,000/- Medical expenses : Rs.15,000/- Loss of earnings : Rs. 6,000/- (1500X4) Pain and suffering : Rs.20,000/- --------------- Total Rs. 43,250/- ========= 9. Challenge is raised against the quantum of compensation awarded. The appellant was a loading and M.A.C.A. No.1302 of 2004 6 unloading worker and in 1999, the date of the accident, he has been reckoned as earning only a monthly income of Rs.1,500/-. This is grossly inadequate. The Tribunal ought to have realistically taken note of the presumption of prudence available under Clause 6 of the second Schedule which enables the court to assume that even a non-earning person must have been earning an income of Rs.1,250/- per mensem. The appellant was a young man aged 25 years at the time of the accident. We do in these circumstances, find it absolutely reasonable to assume that he would have earned an income of Rs.2,500/- per mensem. He was an inpatient for a period of one month. The Tribunal noted that there must have been involuntary unemployment for a period of 4 months. We are satisfied that an appropriately higher amount of compensation ought to be awarded under the head of loss of earnings. Medical and miscellaneous expenses must have been incurred for a period exceeding one month both for treatment as an inpatient and later as an outpatient. The Tribunal awarded only an amount of Rs.15,000/-. Some original bills could not be produced by the appellant and that led to the rejection of his claim for a larger amount. We will assume that the appellant M.A.C.A. No.1302 of 2004 7 has not succeeded in proving all the expenditure satisfactorily but certainly reasonable inferences can and must be drawn by any Tribunal saddled with the responsibility of ensuring payment of just compensation in the facts and circumstances of every case. We have evidence to show the nature of injuries suffered which are already extracted above. We have evidence to show that the appellant was an inpatient for a period of about one month. We have evidence to show that he must have continued treatment thereafter also. In any view of the matter we are satisfied that an amount of Rs.25,000/- can be awarded as medical and miscellaneous expenses incurred by the appellant for his treatment. 10. He was an inpatient for about one month and the Tribunal awarded only a total amount of Rs.1,500/- under the composite head of expenses of the bystander and for extra nourishment. We are certainly satisfied that an amount of Rs.3,000/- each can be awarded under both heads. 11. No compensation has been awarded under the head of disability. In fact there is nothing to show that any disability has resulted. We have only indications from the nature of injuries M.A.C.A. No.1302 of 2004 8 that the left big toe was supported and hanging by the tendon. But unfortunately there is no materials whatsoever before court from any other documents to conclude that there must have been loss of the big toe of the left foot. In the total absence of any evidence on this aspect we are unable to agree with the learned counsel for the appellant that there was loss of left big toe for the appellant. However, the nature of the injuries must certainly suggest to the court, pain and suffering and the inconvenience and loss of amenities which he must have endured during the period of treatment and thereafter. We are satisfied that an amount of Rs.25,000/- can be awarded under the head of pain and suffering in addition to a further amount of Rs.10,000/- for inevitable loss of amenities during the period of unemployment on account of the injuries. We are awarding relatively higher amounts made under these heads. The nature of the serious injuries and the inability/failure of the appellant to adduce evidence of the permanent consequences of the injury does worry us. 12. The Tribunal has held that interest at the rate of 9% is payable to the appellant if the claim can be admitted. We find no M.A.C.A. No.1302 of 2004 9 reason to interfere with that direction of the Tribunal. 14. The above discussions lead us to the conclusion that the appellant is entitled to the following amount as compensation. Transport to hospital : Rs. 2,000/- Damage to clothing : Rs. 250/- Extra nourishment : Rs.3,000/- Bystander expenses : Rs.3,000/- Medical and miscellaneous expenses : Rs.25,000/- Loss of earnings (2500X4) : Rs.10,000/- Pain and suffering :Rs.25,000/- Loss of amenities :Rs.10,000/- --------------- Total Rs.78,250/- ======== 15. In the result: a. The appeal is allowed in part. b. The respondents 1 to 3 are directed to pay a total amount of Rs.78,250/-(Rupees seventy eight thousand two hundred and fifty only) to the appellant along with interest at the rate and for M.A.C.A. No.1302 of 2004 10 the period as directed by the Tribunal. c. The appellant is also be entitled to costs before the Tribunal in accordance with Rules 195 and 196 of the Civil Rules of Practice read with Rule 381(2) of the Kerala Motor Vehicles Act. Considering the passage of time, we direct that the entire amount can be released by the Tribunal to the claimant straightaway. R. BASANT, JUDGE M.C.HARI RANI, JUDGE ln