Branch Manager National Insurance Company Limited v Joy P.M., Satheesan K.P., Ansalna Beegum

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 30TH DAY OF JULY 2018 / 8TH SRAVANA, 1940** **MACA.No. 1272 of 2016** **AGAINST THE AWARD IN OPMV 971/2012 of ADDL.MACT - I,PATHANAMTHITTA DATED 28-11-2015** ## **APPELLANT** **THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED, THIRUVALLA, REPRESENTED BY ITS MANAGER, MOTOR THIRD PARTY CLAIMS SECTION REGIONAL OFFICE, M.G.ROAD, ERNAKULAM** **BY ADV.SRI.LAL GEORGE** ## **RESPONDENTS:** **1. JOY P.M AGED:45 YEARS, THYMALA POIKAYIL HOUSE, MANJADI PO KUTTAPUZHA VILLAGE, THIRUVALLA TALUK-609105 2. SATHEESAN K.P @ RAMANAN S/O PURUSHAN, KUTTANAL HOUSE, AMALOOR, MANDADI PO-689105** **3. ANSALNA BEEGUM VALUPURAMBIL HOUSE, THUKALASSERY PO, THIRUVALLA-689105** **R1 BY ADV. SRI.T.K.KOSHY R1 BY ADV. SRI.SABU I.KOSHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BNG** ## **P.D.RAJAN, J** ## **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.1272 of 2016 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 30[th] day of July, 2018 ## **JUDGMENT** This appeal is preferred against the award in O.P(MV) No.971/2012 of the Addl. Motor Accidents Claims Tribunal-I, Pathanamthitta by the insurer. On 25.07.2012 at 5.00 pm, the first respondent in this appeal sustained injuries in a motor accident, while he was travelling in an autorickshaw and the learned Tribunal awarded compensation of Rs.5,56,374/- with 9% interest and proportionate cost. Being aggrieved by that, the insurer of the vehicle preferred this appeal. 2. The claimant's case in the lower court was that on 25.07.2012 at 5.00 pm, he was travelling in an autorickshaw through Manjadi - Poikayil public road, when he reached at the place of occurrence, the vehicle hit against an electric post, as a result, the first respondent in this appeal sustained serious injuries. Immediately, he was removed to hospital. The driver and owner of the vehicle were set exparte. The insurer admitted the insurance of the vehicle. The **M.A.C.A No.1272 of 2016** **-2-** claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A10. The learned Tribunal awarded the following amount as compensation in this case. |1. Loss of earnings|Rs.30,000/-| |---|---| |2. Pain and suffering|Rs.30,000/-| |3. Transport to Hospital|Rs.1,000/-| |4. Extra nourishment|Rs.5,000/-| |5. Loss of earning power|Rs.4,36,800/-| |6. Loss of amenities|Rs.30,000/-| |7. Medical treatment expenses|Rs.18,574/-| |8. Bystanders expenses|Rs.5,000/-| |**Total**|**Rs.5,56,374/-**| 3. The learned counsel appearing for the insurer contended that the medical board assessed the permanent disability at the rate of 10% and the learned Tribunal subsequently assessed functional disability at 20% and awarded huge amount as disability compensation. Before taking 20% as the disability, the learned Tribunal has to refer the claimant to another Medical Board for getting expert opinion about the functional disability. Therefore, the notional calculation without any basis is unsustainable in law. 4. The learned counsel appearing for the first respondent claimant contended that, when there is functional ## **M.A.C.A No.1272 of 2016** **-3-** disability increase in the disability by the Tribunal is justifiable. The assessment of the functional disability is just and reasonable and no interference is necessary. 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 compensate injury so far as money can compensate. When compensation ## **M.A.C.A No.1272 of 2016** **-4-** 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 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 ## **M.A.C.A No.1272 of 2016** **-5-** assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. 7. In this context, I have considered the discussion made by the learned Tribunal. Considering the occupation, the learned Tribunal took Rs.10,000/- as the monthly income, along with that 30% was also added towards future prospects, in which the learned Tribunal followed the decision of the apex court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd (2014 ACJ 621)**_ and that finding with regard to the income is confirmed. It is true that the first respondent was aged 42 years at the time of accident and the injury at that age will surely affect his earning capacity. While fixing the disability unilaterally by the Tribunal, it has to act with caution and there is a room to accept the expert evidence of the Doctors and re-fixing the disability. Normally, the learned Tribunal is assessing the disability on the basis of the disability certificate issued by the Doctor, who treated the injured or the disability certificate issued from the Medical Board. There are several instances where the Doctors, who are not treating the claimants are issuing the disability ## **M.A.C.A No.1272 of 2016** **-6-** certificate liberally without considering the nature of injury. But, when the constituted Medical Boards are issuing disability certificate and the learned Tribunal has a reasonable doubt that the disability is more than the certified disability by the Medical Board, it can invariably refer the claimant for a second opinion with the help of another Medical Board or an expert Doctor from District Centre of Medical College. 8. This Principle was re-iterated by apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ at the end of Para 12 wherein it was held as follows: _“If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.”_ As per Ext.A7 disability certificate, the first respondent sustained fracture shaft of left radius and there was limitation of pronation or supination of left forearm. If that be the position, the Tribunal would have referred the claimant to another Medical Board before taking 20% disability. In the circumstance, the finding with regard to 20% disability is set aside and the matter is remitted to the ## **M.A.C.A No.1272 of 2016** **==> picture [19 x 9] intentionally omitted <==** Tribunal for fresh assessment of the disability. The appellant and the first respondent are directed to appear before the Tribunal on 10.10.2018. In all other respect, the amount awarded by the Tribunal is confirmed. On such appearance, the Tribunal shall refer the claimant to another Medical Board and assess the disability and award just compensation as stated in _**Rajkumar case (supra).**_ This appeal is disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng