Benedict s/o Varuthunni Kozhukullikkaran v Saramma w/o Benny; Byju s/o Pappachan; The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **MACA.No. 626 of 2011** **-------------------OP(MV) 3644/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,THRISSUR** **----------** ## **APPELLANT/PETITIONER** **--------------------** **BENEDICT,S/O VARUTHUNNUI, KOZHUKULLIKKARAN,PO PUTHUR,T HRISSUR DISTRICT.** **BY ADV.SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------** **1. SARAMMA,W/O BENNY, TC NO.18/2660, EMMATTY HOUSE,MISSION QUARTERS, THRISSUR DISTRICT.680001** **2. BYJU,S/O.PAPPACHAN, PUTHENVEETTIL HOUSE,KALATHODE, OLLUKKARA, THRISSUR DISTRICT.680001** **3. THE NEW INDIA ASSURANCE CO.LTD, KOLLANNUR BUILDING,PALACE ROAD,THRISSUR.680001.** **R3 BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V.** **01.08.2018** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.626 of 2011 ---------------------------------Dated this the 12[th] day of July, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.3644 of 2004 of the Motor Accidents Claims Tribunal, Thrissur by the injured. Appellant sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.5,92,000/- (Rupees Five Lakh Ninety Two Thousand only) with 8% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal. 2. Claimants case in the lower court was that on 05.06.2004 at 9.00 a.m., while he was riding a motorcycle KL-08/G-1074 through Mission Quarters Public Road, at that time a Maruthi Omni Van KL-8/U-880 driven by the 2[nd] respondent in a rash and negligent manner hit on his vehicle, as a result he sustained serious injuries in the accident. Immediately he was removed to hospital. The accident was not disputed by the respondents in the ## M.A.C.A. No.626 of 2011 2 lower court. The driver and owner were ex parte. The insurer admitted the insurance of the vehicle. Claimant examined PW1 and PW2 and marked Exts.A1 to A28 as his documentary evidence. Respondents evidence consist of Ext.B1, the copy of the policy. The learned Tribunal awarded the following amounts as compensation. Loss of earning (Total) Rs.40,000/-, Medical and Miscellaneous expenses Rs.3,42,505/-, Future Treatment Rs.20,000/-, Bystander expenses Rs.10,000/-, Transportation expenses Rs.24,945/-, Extra nourishment Rs.8,000/-, Damages to clothing etc.500/-, Pain and suffering Rs.50,000/-, Disability- Loss of earning power, Loss of amenities dis-figuration Rs.96,000/-. The total compensation awarded is Rs.5,91,950/- which is rounded as Rs.5,92,000/- (Rupees Five Lakh Ninety Two Thousand only). 3. Learned counsel appearing for the appellant contended that the appellant is an income tax payee earning an amount of Rs.20,000/- per month, but the learned Tribunal took Rs.2,500/- as his monthly income. ## M.A.C.A. No.626 of 2011 3 The injured sustained 30% permanent disability, but the learned Tribunal without any evidence reduced the disability to 20% and just amount was not awarded. 4. 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.626 of 2011 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.” 5. 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.626 of 2011 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. 6. In this back drop, I have examined whether the income of the injured was proved. He produced Ext.A26 attested copies of the income Tax Returns for the years 2006-2007, 2007-2008, 2008-2009 and 2009-2010. His taxable turnover in the year 2004 was Rs.13,11,592/-. As per Ext.A25 copy of Income Tax Return, the income from business was Rs.40,000/- per year. He claimed Rs.20,000/- as his monthly income. Even though he contended that he was getting Rs.20,000/- per month, in the absence of specific evidence, he is not entitled to get that much amount towards his monthly income. Hence, in M.A.C.A. No.626 of 2011 6 view of **Dixit Kumar and Ors.** Vs. **Om Prskash Goel [2017 ACJ 2057],** I fix his monthly income as Rs.6,000/and the following additional amounts are awarded as enhanced compensation to the victim. The appellant was aged 35 years at the time of accident. The multiplier is 16 in view of **Sarla Verma** v. **Delhi Transport Corporation [2010 (2)KLT 802(SC)]** . He sustained 30% permanent disability. Hence he is entitled to get an amount of Rs.3,45,600/- (6000x12x16x30/100) for Permanent Disability. The learned Tribunal awarded Rs.96,000/- on that head. The balance is Rs.2,49,600/-. Loss of income for twelve months Rs.72,000/- (6000x12). The Tribunal awarded Rs.40,000/- on that head. The balance is Rs.32,000/-. In addition to that, an amount of Rs.25,000/- is awarded towards Loss of Amenities. Accordingly, the appellant is entitled to get an enhanced compensation of Rs.3,06,600/- (Rupees Three Lakh Six Thousand Six Hundred only) with 8% interest and proportionate cost in addition to Rs.5,92,000/- (Rupees Five Lakh Ninety Two Thousand only) awarded by the M.A.C.A. No.626 of 2011 7 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