C.G. Siju v. Sreekumar, Jimmy Mathew, National Insurance Company Ltd., Divakaran Nair, Oriental Insurance Company 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. 140 of 2012** **AGAINST THE AWARD IN OP(MV) NO. 2559/2003 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULM DATED 28-02-2011** **----------------** ## **APPELLANT** **C.G.SIJU** **AGED 27 YEARS, S/O.GOPINATHAN, CHITTADIYIL (CHIKADI)HOUSE, MARAVANTHURUTH, EDAVATTOM P.O., KOTTAYAM DISTRICT, PIN-686605.** **BY ADVS.SRI.JESWIN P.VARGHESE** **SRI.T.S.BIJU** ## **RESPONDENTS:** **1. SREEKUMAR** **S/O.BALAKRISHNA PILLAI, KEEZHATHIL HOUSE, NEAR ELAMKAM TEMPLE, NEDUMANGAD BHAGAM, KARAMANA P.O., TRIVANDRUM DISTRICT, PIN-695002.** **2. JIMMY MATHEW,** **MUTHUTHAVALATHIL HOUSE, POONJAR SOUTH P.O., ERATTUPETTA, KOTTAYAM DISTRICT, PIN-686582.** **3. NATIONAL INSURANCE COMPANY LTD.** **M.T.P.C. OFFICE, M.G.ROAD, ERNAKULAM DISTRICT, PIN-682016.** **4. DIVAKARAN NAIR,** **S/O.PADMANABHAN NAIR, PANAYELVEDU, MLAMOODE, NEMAM P.O., KOTTAYAM DISTRICT, PIN-695020.** **5. ORIENTAL INSURANCE COMPANY LTD.** - **M.T.P.C. OFFICE, M.G.ROAD, ERNAKULAM DISTRICT, PIN-682016.** **R3 BY ADV. SMT.SARAH SALVY** **R5 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No. 140 of 2012** ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE A1 CERTIFIED COPY OF AWARD DATED 28.02.2011 IN O.P. (MV) NO.2559/03 OF ADDL.M.A.C.T ERNAKULAM** **ANNEXURE A2 MEDICAL CERTIFICATE DATED 23.12.2011 ISSUED BY MEDICAL TRUEST HOSPITAL, ERNAKULAM IN FAVOUR OF THE APPELLANT** ## **RESPONDENTS ANNEXURES NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/26.7.18** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.140 of 2012 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 12[th] day of July, 2018 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.2559/2003 of the Motor Accidents Claims Tribunal, Ernakulam by the injured. The appellant sustained injuries in a motor accident on 31.07.2003 and the learned Tribunal awarded compensation of Rs.6,42,172/-. Being aggrieved by that, the injured preferred this appeal. 2. In the lower court, the accident was not disputed by the respondents. The driver, owner and the fourth respondent were set ex-parte in the lower court. The third and fifth respondents filed a written statement and admitted the insurance of both vehicles. The claimant's evidence consist of oral testimony of PW1 and PW2 and documentary evidence of Exts.A1 to A20. Respondents did not adduce any oral evidence. The learned Tribunal awarded the following amount as compensation. 1. Loss of earning Rs.27,000/2. Transportation expenses Rs.12,500/3. Damage to clothes Rs.400/- ## **M.A.C.A No.140 of 2012** **-2-** 4. Extra nourishment Rs.3,000/5. Medical expenses (supported by bills) Rs.1,63,772/6. Attendant expenses Rs.6,500/7. Snook, pain and sufferings Rs.50,000/8. Compensation for continuing & permanent disability 3000x12x18x50/100 Rs.3,24,000/9. Compensation for loss of earning power/ marriage property Mental shock and agony Loss of amenities and enjoyment in lift Rs.30,000/Compensation for dis-figuration Rs.15,000/- **Total Rs.6,42,172/-** 3. The learned counsel appearing for the appellant contended that the injured sustained sub archanoid hemorrhage and now he lost vision and is suffering from epilepsy. The appellant is a cook working in a hotel and was getting Rs.4,500/- per month and the learned Tribunal took Rs.3,000/-. Meagre amount was awarded as compensation. Now, he is continuing the treatment and produced additional documents for getting enhanced compensation. 4. 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. ## **M.A.C.A No.140 of 2012** **-3-** 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 assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. 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 ## **M.A.C.A No.140 of 2012** ## **-4-** 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.” 6. 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 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. The appellant is entitled to get just amount as compensation. 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_ ## **M.A.C.A No.140 of 2012** ## **-5-** _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 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.140 of 2012** **-6-** 7. The claimant was not examined in the lower court. If that be the position, for awarding just compensation, the injured has to adduce oral evidence before the court. In view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ the income is fixed as Rs.4,500/- per month. In the circumstance, the award of the Tribunal is hereby set aside and the case is remitted to lower court for fresh consideration. The amount awarded will be adjusted with the final award amount. Both parties are directed to appear before the Tribunal on 03.09.2018. On such appearance, the Tribunal shall take additional evidence and dispose the matter as per law within three months from the date of their appearance. Sd/- **P.D.RAJAN JUDGE** bng