IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 MACA.No. 84 of 2006(B) --------------------- OPMV.64/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: ----------------------------------- P.K. ABDUL AZEEZ, S/O. EBHRAHIM KUTTY, AGED 61 YEARS, PARAYIL HOUSE, POTHUVACHERRY AMDOM DESOM, KADACHIRA, PODUVACHERRY P.O., KANNUR. BY ADV. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA RESPONDENTS : RESPONDENTS --------------- 1. V.V. DAMODARAN, S/O. KUMARAN NAIR, THIYYADATH HOUSE, P.O. AZHIKKAL, (OWNER OF THE BUS KI-13/B 9912. 2. M/S. UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, KANNUR. (POLICY NO.100805/31/040/16/00944/1999) (CERTIFICATE NO.42014). 3. K.P. PRAKASHAN, S/O. DAMOARAN, AGED 34 YEARS, KAVULLA PURAYIL HOUSE, KANHIRODE AMSOM DESOM, P.O. KANHIRODE (DRIVER OF THE VEHICLE KI-13/B 9912). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.84 of 2006-B ***************************** Dated this the 30th day of September, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 02.07.1999. He claimed to be a businessman earning an income of Rs.6,000/- per mensem. He was after the accident removed to the A.K.G Memorial Hospital at Kannur. He had suffered injuries including 2 fractures – fracture of the ribs and fracture of the mandible. He had respiratory distress. He was referred to the Calicut Medical College Hospital for expert management. The appellant was not taken to the Calicut Medical College Hospital, but at Calicut, he was admitted to the Fathima Hospital. He underwent treatment there as an inpatient from 02.07.1999 to 23.07.1999. According to him, he had allegedly incurred huge expenditure for treatment. He continued treatment as an outpatient after his discharge. There is nothing to show that he had suffered any permanent disability as a result of the accident. He was a passenger in a jeep. There was a collision between the vehicle in which he was travelling M.A.C.A No.84/06 2 and the bus which was owned, driven and insured by the respondents herein. The appellant alleged that the accident had taken place solely on account of the negligence of the driver of the insured vehicle/bus. 2. Respondents resisted the claim. The accident was admitted. But a contention was raised that the driver of the jeep was responsible for the accident. Of course the insurance company in their counter statement had alleged that the appellant was driving the vehicle at the relevant time and that he was negligent. According to the appellant, this is an ill informed contention raised. The appellant was only a passenger of the said vehicle. Be that as it may, what is of relevance is that it was contended that the driver of the insured vehicle was not negligent and that the driver of the other vehicle was negligent. 3. Parties went to trial on these contentions. Exts.A1 to A4 were marked on the side of the appellant. No other evidence whatsoever was adduced. Ext.A1 is the photocopy of F.I.R registered on the basis of the complaint of a passenger in the bus/insured vehicle. Ext.A2 is a copy of the wound certificate issued from the A.K.G Memorial Hospital, to which the appellant was rushed immediately after the accident. Ext.A3 is a copy duly M.A.C.A No.84/06 3 certified by the Sub Inspector of Police of a certificate issued from the Fathima Hospital, Calicut. Ext.A4 series are bills issued by the Fathima Hospital in respect of the treatment given to the appellant. 4. The Tribunal on the question of negligence came to the conclusion that there was no evidence to come to a conclusion that the driver of the insured vehicle was responsible for the accident. In the total absence of any evidence, the Tribunal felt it safe to conclude that both drivers were equally responsible for the accident. Accordingly the Tribunal proceeded to issue the direction that the driver, owner and the insurer of the insured vehicle are liable to compensate the appellant to an extent of 50% of his loss alone. 5. The Tribunal thereupon proceeded to consider the quantum of loss suffered by the appellant. The Tribunal was not persuaded to accept Ext.A3 certificate. The Tribunal did not hence go into Ext.A4 medical bills also. The Tribunal, against a total claim of Rs.2,50,000/-, came to the conclusion that the loss suffered by the appellant is only Rs.12,800/- as per the details given below: M.A.C.A No.84/06 4 Sl.No. Head of award Amount awarded 1 Transport to hospital Rs. 400.00 2 Damage to clothing etc. Rs. 400.00 3 Treatment expenses Rs. 5,000.00 4 Pain and suffering Rs. 5,000.00 5 Loss of amenities Rs. 2,000.00 Total Rs.12,800.00-rounded off to Rs.13,000.00 6. Half of the said loss – Rs.6,500/- (13,000/-) was ordered to be paid as compensation to the appellant by respondents 1 to 3. 7. Before us, the learned counsel for the appellant has advanced arguments. The respondents though served have not chosen to enter appearance. 8. The learned counsel for the appellant first of all contends that the finding on the question of negligence is not satisfactory. We fail to understand the contention. 2 vehicles were involved in the accident and allegations and counter allegations were made against the drivers of the two vehicles. Most surprisingly no oral evidence was adduced about the extent of responsibility of the drivers for the accident. Even the final report submitted by the police has not been produced. In these circumstances, we are of the opinion that the conclusion of the M.A.C.A No.84/06 5 Tribunal is the best that could be reached in the given circumstance. Both drivers were held to be equally responsible for the accident. We find absolutely no merit in the challenge raised against the said finding. 9. The learned counsel for the appellant next contends that the Tribunal was grossly incorrect in concluding that the total loss suffered was only Rs.13,000/-. Reasonable calculation and computation of loss were not undertaken by the Tribunal, it is lamented. We find force in that submission. 10. First of all we find it easy to conclude that the appellant is entitled to compensation under the head of loss of earnings. The appellant claimed to be a businessman. But no documents were produced to prove employment or income. Even in the absence of any better evidence, we find it safe to conclude that the appellant must, at any rate, have been earning an income of Rs.3,000/- per mensem. In coming to this conclusion, we take note of the presumption of prudence permitted under clause 6 of the Second Schedule to the Motor Vehicles Act. We do also take note of the decisions of the Supreme Court in Lata Wadhwa V. State of Bihar [AIR 2001 SC 3218] and Laxmi Devi & Ors. V. Mohammad Tabbar & M.A.C.A No.84/06 6 Anr. [2008 ACJ 1488], under which Tribunals are enabled to draw a presumption of prudence that even a non earning home maker and an unskilled manual worker can be assumed to earn an income of Rs.3,000/- per mensem. 11. About the pain and suffering endured, we have satisfactory indications about the nature of the injuries including fracture of the ribs and fracture of the mandible. Ext.A4 series clearly reveal that the appellant was an inpatient from 02.07.1999 to 23.07.1999. Nature of procedures undergone can also be gathered from the totality of inputs including Ext.A4 series medical bills. The appellant was under respiratory distress and was moved from Kannur to Kozhikode for treatment emergently. Taking all the relevant inputs, we are satisfied that Rs.20,000/- can safely be fixed as the quantum of compensation for pain and suffering endured. Under the head - medical and miscellaneous expenses, the Tribunal had awarded only an amount of Rs.5,000/-. We are satisfied that Ext.A4 series can safely be accepted. Excluding the bills which are in duplication, we are satisfied that the total medical expenses can safely be held to be Rs.67,000/-. It will be apposite straightaway to note that the hospital bills itself comes to Rs.44,410/-. In addition M.A.C.A No.84/06 7 bills for medicines and investigations also had to be paid. 12. No amount is seen awarded by the Tribunal under the head of bystander's expenses and extra nourishment. We are satisfied that compensation @ Rs.100/- per day under each head can be granted for the entire period of hospitalisation, ie. 21 days. 13. We are satisfied that amounts are liable to be granted for expenses for transportation. We take note that the appellant was initially rushed to the A.K.G Memorial Hospital, Kannur and from there to the hospital at Calicut. We are satisfied in these circumstances even in the absence of better evidence that Rs.3,000/- can safely be fixed as the quantum of compensation payable as expenses for transportation. For damage to clothing, an amount of Rs.400/- has been awarded. We are satisfied that the same can be enhanced to Rs.1,000/-. 14. No permanent physical disability is suffered by the appellant. There is nothing to indicate that any such disability had been suffered. In these circumstances, we are satisfied that no amount of compensation is liable to be awarded for physical disability or loss of amenities consequent thereto. For all pain, suffering and inconvenience, we have already awarded an M.A.C.A No.84/06 8 amount of Rs.20,000/- under the head pain and suffering. 15. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.93,400/- as shown below in addition to the amounts already awarded by the Tribunal under the impugned award. i) Loss of earnings (no amount awarded by the Tribunal) : Rs. 9,000.00 (3 months X 3,000) ii) Pain and suffering : Rs. 15,000.00 (20,000 minus 5,000) iii) Medical and miscellaneous expenses : Rs. 62,000.00 (67,000 minus Rs.5,000/-) iv) Bystander's expenses and extra nourishment : Rs. 4,200.00 (21 days X Rs.200) v) Transportation charges : Rs. 2,600.00 (3,000 minus 400) vi) Damage to clothing : Rs. 600.00 (1,000 minus 400) ------------------- Total : Rs.93,400.00 ======== Half of that amount comes to Rs.46,700/- and the appellant would be entitled to the said further amount. 15. We are not persuaded to agree that the challenge on M.A.C.A No.84/06 9 any other ground deserves acceptance invoking our appellate jurisdiction under Section 173 of the M.V Act. 16. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.46,700/- (Rupees Forty six thousand seven hundred only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) All other directions of the Tribunal are upheld; e) We direct that the appellant would be entitled to proportionate cost on the entire amount awarded. Cost to be calculated as held in Jeena V. Satheesh Babu.K [2011(3) KLT 943]. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/