Binu Kumar v. Benny K. Thomas, Rahulraj and Oriental Insurance Company Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940** **MACA.No. 3152 of 2014** **AGAINST THE AWARD IN OPMV 179/2008 of M.A.C.T.,PUNALUR** ## **APPELLANT(S)/PETITIONER** **BINU KUMAR, AGED 36 YEARS, S/O.RAMACHANDRAN NAIR, THUNDIL VEEDU, KANIYAMPADICKAL, PUNNALA, PUNNALA P.O., PATHANAPURAM TALUK, KOLLAM DISTRICT.** **BY ADV.SRI.ANCHAL C.VIJAYAN** ## **RESPONDENTS/RESPONDENTS:** ## **1. BENNY K.THOMAS** **S/O.THOMAS, KALLUMPURATHU VEEDU, ENATHU, VADAKKEDATHU KAVU P.O., ADOOR, PATHANAMTHITTA DISTRICT, PIN 691526.** ## **2. RAHULRAJ** **S/O.RAJAN NAIR, EMPATTAZHI VEEDU, KULAKKADA, PATHANAMTHITTA DISTRICT, PIN 691521.** **3. THE ORIENTAL INSURANCE COMPANY LIMITED P.B.NO.2, VIJAYA NAGAR BUILDING, PULAMON P.O., KOTTARAKKARA, KOLLAM, PIN 691531.** **R3 BY ADV. SRI.R.AJITH KUMAR (128/84) R BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BNG** ## **P.D.RAJAN, J** ## **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.3152 of 2014 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 07[th] day of August, 2018 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.179/2008 of the Motor Accidents Claims Tribunal, Punalur by the injured. The appellant sustained injuries in a motor accident on 27.05.2007 and the learned Tribunal awarded compensation of Rs.8,00,720/- with 7.5% interest and cost. Being aggrieved by that, the claimant preferred this appeal. 2. The claimant's case in the lower court was that on 27.05.2007 at 1.30 pm, he was riding a motor cycle from Kulakkada to Yenath, when he reached near Kulakkada High School, a car KL-7AD/7007 driven in a rash and negligent manner hit against the motor cycle, as a result, he sustained serious injuries. Immediately, he was removed to hospital. The driver and owner of the vehicle did not contest the matter. The insurer admitted the insurance of the vehicle. 3. In the lower court, the claimant did not ## **M.A.C.A No.3152 of 2014** **-2-** adduce any oral evidence, but his documents were marked as Exts.A1 to A33. The learned Tribunal awarded the following amount as compensation. 1. Loss of earning Rs.40,000/2. Transport to hospital and back Rs.12,000/3. Extra nourishment Rs.22,600/- 4. Damage to clothing and other articles Rs.750/5. Cost of medicine and Rs.4,31,070/bystanders expenses Rs.33,900/6. Compensation for pain and sufferings Rs.30,000/- 7. Compensation for permanent disability Rs.2,30,400/- **Total Rs.8,00,720/-** 4. The learned counsel appearing for the appellant contended that the injured was a rubber dealer and also conducting a provision store and was getting Rs.8,000/- per month. He was aged 30 years at the time of accident and sustained permanent disability of 37.38% and just amount was not awarded by the Tribunal. 5. In _**Yadava Kumar**_ v. _**D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567)**_ Apex Court ## **M.A.C.A No.3152 of 2014** **-3-** ## 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 compensationis 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 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 ## **M.A.C.A No.3152 of 2014** **-4-** 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 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 ## **M.A.C.A No.3152 of 2014** **-5-** 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 learned counsel appearing for the respondent insurer contended that the Doctor, who treated the appellant was not examined and no oral evidence has been adduced in the lower court to prove the disability and income. In the circumstance, the learned Tribunal took Rs.4,000/- as the monthly income and the disability at the rate of 30%. No illegality in the finding of the court below. 8. Apex court in _**Raj Kumar v. Ajay Kumar**_ ## _**[2011(1) KLT 620 (SC)]**_ held as follows: _“where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage_ ## **M.A.C.A No.3152 of 2014** ## **-6-** _of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation._ ## **M.A.C.A No.3152 of 2014** **-7-** 9. Ext.A3 is the wound certificate issued from Vijaya Hospital, Kottarakkara, which shows compound fracture Grade III both bones, fracture femur L/3[rd] and suspected vascular injury and he was referred to Medical College Hospital, Thiruvananthapuram. He was admitted at Medical College Hospital, Thiruvananthapuram on 27.05.2007 and discharged on 26.07.2007. Clinical history shows a crush injury, lower extremity, fracture shaft of femur type I and fracture both bone right leg type II. Ext.A7 shows that he was treated at Specialists Hospital, Ernakulam, North- Kochi on 29.07.2007 and discharged on 25.09.2007. Diagnosis shows infected open fracture right femur, bone loss right tibia with chronic osteomyelitis right foot. Illizarov ring fixation was done at right femur bifocal on 05.11.2007. On 28.11.2007 ring fixation right leg trifocal was also done. He was readmitted on 23.10.2007 and discharged on 24.12.2007 with advice to review after one month. He was readmitted on 23.04.2008 and discharged on 03.05.2008. ## **M.A.C.A No.3152 of 2014** **-8-** Again he was readmitted on 15.10.2008 and discharged on 31.10.2008. Diagnosis shows nonunion tibia right trifocal Ilizarov nonunion femur. Again he was admitted on 05.03.2009 and discharged on 13.03.2009. Again he was readmitted on 18.01.2010 and discharged on 27.01.2010. He was subsequently reviewed on 09.03.2010 and 01.04.2010. Ext.A10, Ext.A11, Ext.A12 and Ext.A13 are other treatment records issued from Specialists Hospital, Ernakulam. Ext.A14 disability certificate issued from Medical College Hospital, Thiruvananthapuram, which shows 37.38% disability as per MACS scale. He had temporary disability of 100% for a period of two years and ten months from the date of injury. The Doctor, who treated the appellant detailed the injuries and treatment in Ext.A14, which shows as follows: _“Large ugly scars on right leg with flap cover and grafted skin. Skin adherent to bone. Repeated breakdown of skin present. Lengthening of 1cm of right leg. Total ankylosis of right ankle in 100 degrees equinus. Only flicker of movements of toes present. Knee fixation limited to 45 degrees. Instability of right knee present with medial_ ## **M.A.C.A No.3152 of 2014** ## **-9-** _collateral ligament laxity and positive valgus stress test. Internal rotation deformity of 15 degrees of right foot present. Long healed puckered scar on lateral aspect of right thigh. Skin adherent to underlying bone. Occasional breakdown of skin present. Tenderness present over right femur due to chronic osteomyelitis. Itching present in left thigh over skin grafting décor site. Patient walks with difficulty with help of two crutches. Difficulty in carrying out activities of daily living. Not able to squat. Not able to climb stairs. Not able to fully bear weight with right lower limb. Healed scar on right forearm with tenderness over fracture site on ulna.”_ Even though, respondents contended that the Doctor, who treated the appellant was not examined and disability is not acceptable in view of the treatment records Ext.A9, Ext.A10, Ext.A11, Ext.A12 and Ext.A13 and the details shown in Ext.A14, I am of the view that non examination is not a ground to discard the documentary evidence to prove the disability and the injuries. Therefore, in view of _**Raj Kumar**_ 's case (supra), I take the disability at the rate of 37.38%. 10. The appellant claimed Rs.8,000/- as the ## **M.A.C.A No.3152 of 2014** **-10-** monthly income, but the learned Tribunal took Rs.4,000/-. He was conducting a provision store and also doing rubber business. Ext.A27 is the certificate issued from Piravanthoor Grama Panchayat to prove the business of rubber. In the light of Ext.A29, it is just and reasonable to take Rs.6,500/as the monthly income and he is entitled to get just amount as compensation in view of _**Raj Kumar**_ 'case (supra). The following amount is awarded. Loss of income for two years and ten months is Rs.6,500x34=Rs.2,21,000/-. The learned Tribunal awarded Rs.40,000/- and the balance is Rs.1,81,000/-. For transport to hospital additional amount of Rs.13,000/-, for extra nourishment additional Rs.10,000/-, for future medical treatment Rs.2,00,000/-, for bystander expense Rs.10,000/-, for pain and suffering Rs.70,000/-, for loss of amenities Rs.50,000/- and for permanent disability is Rs.6,500x12x16x37.38/100=Rs.4,66,502/-, the learned Tribunal awarded Rs.2,30,400/- and the balance amount is Rs.2,36,102/-. In addition to the award, the appellant is ## **M.A.C.A No.3152 of 2014** **-11-** entitled to get additional compensation of Rs.7,70,102/(Rupees Seven Lakhs Seventy Thousand One Hundred and Two only) with 9% interest and 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. The appellant is not entitled to get interest for Rs.2,00,000/awarded towards future medical treatment. This appeal is disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng