High Court of KeralaSingle JudgeMACA disposed of; appeal partly allowed with en...

A.A. George v. N. Krishnakumar, P. Vignesh and The New India Assurance Co. Ltd.

Case / Petition Number:MACA No. 1240 of 2016

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. D. Rajan
Judgment Date
2018-08-06
Court Decision / Holding
The appeal is partly allowed. The compensation is enhanced to Rs 3,80,940 (from Rs 3,56,084) with 9% interest and proportionate costs; insurer to satisfy the enhanced amount within 30 days from receipt of the judgment, failing which 12% interest shall accrue from the date of default. The MACA is disposed of accordingly.
Final Disposition
MACA disposed of; appeal partly allowed with enhanced compensation of Rs. 3,80,940, 9% interest, costs; insurer directed to pay within 30 days; 12% interest on default.

Parties to the Case

Appellants / Petitioners

  • A.A. George

Respondents

  • N. Krishnakumar
  • P. Vignesh
  • The New India Assurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • Smt. Neethu Prem
  • • Sri. Rahul Sasi

Counsels for Respondents

  • • Sri. Renil Anto Kandamkulaathy
  • • Sri. A. A. Ziyad Rahman

Case Synopsis & Summary

This MACA arises from a Motor Accidents Claims Tribunal award granting Rs 3,56,084 for injuries sustained by the appellant on 15 October 2010 when riding a bicycle and struck by a motorcycle on the Kumbalanghi-Perumpadappu road. The insurer admitted coverage; the vehicle's driver and owner were ex parte. The Tribunal assessed damages under various heads (loss of earnings, transportation, clothing, medical expenses, pain and suffering, permanent disability, etc.) and awarded a total substantially lower than the claimant's prayer. The appellant contends that the award is inadequate in light of a 19% permanent disability from a severe head injury (EDH with SDH, SAH, brain edema, multiple fractures) and expected loss of future earnings, combined with future medical needs and loss of amenities in life. The High Court recalls the principles for assessing damages in personal injury cases, emphasizing compensation as a means to place the claimant in the same financial position as before the injury, while recognizing the limits of perfect compensation. Applying the multiplier method and considering the evidence, the court enhances the award to Rs 3,80,940, awards 9% interest, and costs, directing the insurer to satisfy within 30 days or incur 12% interest from default. The MACA is disposed of accordingly, with the insurer liable for the enhanced amount.

Legal Doctrines & Maxims

  • Multiplier method for calculating pecuniary loss in permanent disability cases
  • Compensation is to put the claimant in the same position as he was insofar as money can; perfect compensation is rarely possible
  • Higher compensation is generally warranted in permanent injury cases than in death cases
  • There is no uniform yardstick for assessing compensation; discretion lies with the court based on injury and evidence

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in undercompensating for permanent disability and loss of earning capacity. With a 19% disability from a severe head injury and evidence of substantial future medical needs, the claimant seeks enhancement of damages under both pecuniary and non-pecuniary heads, arguing for a higher multiplier and consideration of future prospects, including loss of earning power and long-term care costs. The evidence, disability rating, and standard of proof support a higher award than the Tribunal granted, and the claimant requests full and fair compensation consistent with the principles laid down in Yadava Kumar (2010) SCALE case law.

Contentions of Respondents

The respondents contend that the Tribunal’s award was just and within its discretionary power. They argue that the evidence supports the Tribunal’s findings on liability and impairment, that actual monthly income remains uncertain beyond Rs. 10,000, and that the heads awarded by the Tribunal were reasonable given the evidence. The insurer emphasizes the sufficiency of the lower court’s assessment, defends the 19% disability as properly supported by Ext.X1, and asserts that any enhancement should be grounded in clear proof of higher earning capacity and actual medical costs. The respondents maintain that the appeal should not disturb the Tribunal’s considered order unless there is a demonstrable error.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Yadava Kumar v. D.M. National Insurance Co. Ltd.2010 (8) SCALE 567PositiveCited by the Apex Court to reaffirm the multiplier approach and the objective of compensating the victim as fully as money can, guiding the court’s framework for damages in personal injury cases.
Rajkumar v. Ajay Kumar and Anr.[2011] ACJ 1PositiveCited to justify fixing the degree of disability (19%) as per the cited precedent and applying appropriate compensatory measures for permanent impairment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 6TH DAY OF AUGUST 2018 / 15TH SRAVANA, 1940** **MACA.NO. 1240 OF 2016** **AGAINST THE AWARD IN O.P.(M.V.) NO.1901/2010 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 16-02-2015** **---------------------------** **APPELLANT(S)/PETITIONER :** **----------------------** **A.A.GEORGE, AGED 55 YEARS, S/O.AUGUSTINE, ALUMPARAMBIL HOUSE, KUMBALANGI P.O., COCHIN - 7.** **BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM** **RESPONDENT(S)/RESPONDENTS :** **--------------------------** **1. N.KRISHNAKUMAR S/O. NANDAKUMAR, PUTHENKAALAM HOUSE, KALAMASSERY P.O., COCHIN - 682 033.** **2. P.P.VIGNESH, S/O. PETER P., PARIYARATHSSERY HOUSE, WEST OF PUTHIYAKAVU TEMPLE, PATTANKKAD P.O., CHERTHALA - 688524.** **3. THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, 1ST FLOOR, THRAYIL CHAMBERS, VYTTILA, COCHIN - 19.** **R3 BY ADV. SRI.RENIL ANTO KANDAMKULATHY** **BY ADV.SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. No.1240 of 2016 ---------------------------------Dated this the 6[th] day of August, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1901 of 2010 of the Additional Motor Accidents Claims Tribunal, Ernakulam by the injured. Appellant sustained serious injuries in a motor accident on 15.10.2010 at 6.00 p.m. and the learned Tribunal awarded compensation of Rs.3,56,084/- (Rupees Three Lakh Fifty Six Thousand and Eighty Four only) with 8% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal. 2. The accident was not disputed by the respondent in the lower court. The claimant's case in the lower court was that on 15.10.2010 at 6.00 p.m., while he was riding a bicycle through Kumbalanghi-Perumpadappu road and when reached at Kumbalanghi Compression mukku, a motorcycle KL-7/BG-3035 driven in a rash and negligent manner hit against his bicycle, as a result he sustained serious injuries in the accident. The driver and ## M.A.C.A. No.1240 of 2016 2 owner of the vehicle were ex parte. The insurer admitted the insurance of the vehicle. In the lower court, claimant was examined as PW1 and his documents were marked as Exts.A1 to A11. The disability certificate was marked as Ext.X1. Respondents did not adduce any evidence. The learned Tribunal awarded the following amounts as compensation. |Head|Amount<br>Claimed|Amount<br>Awarded|Details| |---|---|---|---| |Loss of earnings|30000|16,000/-|4000x4| |Transportation expenses|5,000/-|1,500/-|Ext.A8 series<br>bills| |Damage to clothing &<br>articles|5,000,/-|500/-|| |Extra nourishment|10,000/-|1,100/-|| |Expense for treatment|1,75,000/-|1,61,224/-|As per Exts.A3<br>series bills.| |Expenses for assistance|10,000/-|2,200/-|| |Shock,<br>pain<br>and<br>sufferings|50,000/-|30,000/-|| |Compensation for dis<br>figuration|25,000/-|5,000/-|Ext.A9 series<br>photograph| |Compensation for loss<br>of earningpower|2,00,000/-|0|No evidence| |Compensation for short<br>expectation in life|Rs.50,000/-|0|No evidence| |Compensation for future<br>treatment|50,000/-|0|No evidence| |Compensation<br>for<br>continuing<br>and<br>permanent disability|3,00,000/-|1,18,560/-|4000x12x13x1<br>9/100| M.A.C.A. No.1240 of 2016 3 |Loss of amenities and<br>enjoyments in life|50,000/-|20,000/-|| |---|---|---|---| |Total|9,60,000/-|3,56,084/-|| |Claim<br>limited<br>to<br>Rs.5,00,000/-|||| 3. In permanent injury case, the injured is entitled to get higher income than that in death case. The damages are to be assessed separately as pecuniary and special damages. The object is to compensate injury so far as money can compensate. When compensation is to be awarded for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account. Amount of compensation for nonpecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. In **Yadava Kumar** v. **D.M. National Insurance Co. Ltd.** **[2010 (8) SCALE 567]** Apex Court reiterated the principle in relation to the assessment of damages for personal injuries cases as follows: “ We do not intend to review in detail state of authorities in relation to assessment of all damages for ## M.A.C.A. No.1240 of 2016 4 personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. 10. In some cases for personal injury, the claim could be in respect of lifetime's earning lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases, and that is now recognised mode as to the proper measure of compensation-is taking an appropriate multiplier of an appropriate multiplicand.” 4. The assessment of compensation in permanent disability cases would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform standard and yardstick provided for assessing such compensation. When two persons sustain similar injury, that can attract the same compensation, but the heads under which, compensation can be attributed are truly ## M.A.C.A. No.1240 of 2016 5 amazing. The scope for awarding general damages and special damages are too wide for articulation. It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. Generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. 5. Appellant who was a carpenter at the time of accident claimed that he was getting an amount of Rs.13,000/- per month. He was aged 49 years at the time of accident. Respondents have no dispute with regard to the accident. Ext.X1 shows 19% disability on the appellant. He sustained head injury, left temporal EDH with midline shift, Right FTP thin SDH, Right Temporal SAH with bleed, Brain oedema, left temporal bone fracture, Zygoma fracture, left periorbital oedema, contusion on the left side of forehead and bleeding from the nose. Hence, in view of **Rajkumar** v. **Ajay Kumar** ## M.A.C.A. No.1240 of 2016 6 **and Anr. [2011 ACJ 1]** the disability is fixed at 19%. Since he is a skilled carpenter, his income is taken as Rs.10,000/-. In this case, the injured was aged 49 years at the time of accident, hence an amount of Rs.2,500/(10,000x25%) is to be added towards future prospects and the income comes to Rs.12,500/- (10,000+2,500) and he is entitled to get an amount of Rs.3,70,500/(12500x12x13x19%) towards permanent disability. The learned Tribunal awarded Rs.1,18,560/- and the balance is Rs.2,51,940/-. In addition to that an amount of Rs.30,000/- is awarded towards Loss of Amenities, Rs.50,000/- is awarded towards Pain and Sufferings, Rs.25,000/- is awarded towards Future Medical Expenses and Rs.24,000/- is awarded towards Loss of income for four months. The total enhanced compensation is Rs.3,80,940/- (Rupees Three Lakh Eighty Thousand Nine Hundred and Forty only). Accordingly, the appellant is entitled to get an enhanced compensation of Rs.3,80,940/- (Rupees Three Lakh Eighty Thousand Nine Hundred and Forty only) with 9% interest and ## M.A.C.A. No.1240 of 2016 7 proportionate cost in addition to Rs.3,56,084/- (Rupees Three Lakh Fifty Six Thousand and Eighty Four only) awarded by the learned Tribunal. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge