Bhanu S. Nair v. Anitha S. Nair and Oriental Insurance Company

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940** **MACA.No. 1305 of 2016** **AGAINST THE AWARD IN OPMV 1392/2010 of MACT,PATHANAMTHITTA DATED 24-02-2016** ## **APPELLANT/PETITIONER** **BHANU S.NAIR W/O.SADASIVAN NAIR, AJITH VILLA, THIRUMOOLAPURAM P.O., THIRUVALLA.** **BY ADV.SRI.S.SUBHASH CHAND** ## **RESPONDENTS/RESPONDENTS:** **1. ANITHA S.NAIR W/O. VINOD BABU, KOCHANATTU HOUSE, KARAKKAL P.O., THIRUVALLA-689101.** **2. ORIENTAL INSURANCE COMPANY DIVISIONAL OFFICE, THIRUVLLA-689101, REPRESENTED BY ITS MANAGER.** **R2 BY ADV. SRI.VPK.PANICKER** **R BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bng** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.1305 of 2016 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 25[th] day of June, 2018 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.1392/2010 of the Motor Accidents Claims Tribunal, Pathanamthitta by the injured. The appellant sustained injuries on 15.07.2010 at 12.30 pm, while he was travelling as a pillion rider in a motor cycle KL 27 A 5570 through the Thiruvalla - Kozhencherry public road. The learned Tribunal dismissed the application on the ground that there was no negligence from the part of R1, the driver of the vehicle, but it was accidentally happened. Being aggrieved by that, the injured preferred this appeal. 2. In the lower court, the driver was set exparte. The insurer admitted the insurance of the vehicle, but denied the liabilities, since the criminal case was referred as a motor occurrence. The claimant examined PW1 and 2 and her documents were marked as Exts.A1 to A12. ## **M.A.C.A No.1305 of 2016** **-2-** 3. The learned counsel appearing for the appellant contended that the appellant is entitled to get just amount as compensation. The injuries sustained due to the use of motor vehicle in a public road. Even though the criminal case was referred by the Tribunal, the appellant is entitled to get just amount as compensation. 4. Section 165(1) of the Motor Vehicle Act, 1988 reads as follows: _“_ _**165. Claims Tribunals.** - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.”_ Therefore, Motor Accidents Claims Tribunal is liable to pay compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor cycles, or damages to any property of a third party ## **M.A.C.A No.1305 of 2016** **-3-** so arising, or both. The word 'use' is used in this section in wide sense. The vehicle is mechanically propelled and an accident having taken place because of the use of such mechanically propelled vehicle, the claim for compensation for injuries arising from the accident is maintainable. Here, the injured travelled as a pillion rider in a motor vehicle and accident took place out of the use of that vehicle. If that be the position, the injured in a motor accident is entitled to get compensation out of the use of the motor cycle. Ext.A1 is the F.I.R, Ext.A2 is the scene mahazar, Ext.A3 is the vehicle mahazar, Ext.A4 is the AMVI report , Ext.A5 is the copy of the charge sheet, Ext.A6 is the wound certificate, Ext.A7 is the discharge summary, Ext.A10 series are medical bills, Exts.A11 and A12 are the disability certificates. The evidence of PW1 shows that he sustained serious injuries in a motor accident. Even though the Tribunal found that there was no negligence from the part of R1, the appellant sustained injuries due to the use of a motor vehicle on a public road ## **M.A.C.A No.1305 of 2016** **-4-** and she is entitled to get compensation for the same. 5. 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 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.” In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to ## **M.A.C.A No.1305 of 2016** **-5-** 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 non-pecuniary 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. 6. The assessment of compensation in permanent disability case 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 amazing. The scope for awarding general damages and special damages ## **M.A.C.A No.1305 of 2016** **-6-** 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. 7. The injured was doing rearing cattle and was getting Rs.7,000/- per month, but I take Rs.5,000/- as the monthly income for calculating compensation. Hence, the following amount is awarded as compensation. Loss of income for two months is Rs.10,000/-, for transport to hospital Rs.3,000/-, for extra nourishment Rs.2,000/-, for damages to clothing Rs.1,000/-, for pain and suffering Rs.10,000/-, for loss of amenities Rs.10,000/- and for permanent disability Rs.20,000/-. The appellant produced medical bills for Rs.35,808/-. Hence, Rs.35,000/- is awarded for medical bills. The appellant is entitled to get total compensation of Rs.91,000/- with 9% interest and ## **M.A.C.A No.1305 of 2016** **-7-** proportionate cost. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. This appeal is disposed of, accordingly. Sd/- **P.D.RAJAN JUDGE** bng