Jamshid P. v. National Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940** **MACA.No. 622 of 2015** **--------------------** ## **OP(MV) 1500/2001 OF ADDITIONAL DISTRICT & SESSIONS COURT-II & ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI.** **.......** **APPELLANT/PETITIONER:** **--------------------** **JAMSHID P., AGED 32 YEARS, S/O.MAMMED, PULATH HOUSE, PATHIRIYAL PO, VIA MANJERI, MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN SRI.JITHIN LUKOSE** ## **RESPONDENT/2ND RESPONDENT:** **-------------------------** **NATIONAL INSURANCE CO. LTD., REPRESENTED BY BRANCH MANAGER, BRANCH OFFICE, MANJERI-676 121, MALAPPURAM DISTRICT.** ## **BY ADV. SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **MACA.No. 622 of 2015 --------------------** **APPENDIX** ## **PETITIONERS' ANNEXURES: ----------------------** **ANNEXURE A1 : THE ORIGINALS OF THE MEDICAL BILLS. ANNEXURE A2 : THE ORIGINALS TREATMENT AND ADVICE CERTIFICATE ISSUED BY THE DOCTORS OF KASTURBA HOSPITAL MANIPAL.** **RESPONDENTS' ANNEXURES: NIL -----------------------** **/TRUE COPY/ P.S.TO JUDGE** **mbr/ 25.07.2018.** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.622 of 2015 ---------------------------------Dated this the 11[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.1500 of 2001 of the Motor Accidents Claims Tribunal, Manjeri by the injured. Appellant sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.91,487/- (Rupees Ninety One Thousand Four Hundred and Eighty Seven only) with 6% interest and cost. Being aggrieved by that, the injured preferred this appeal. 2. The accident was not disputed by the respondents in the lower court. Claimant's case in the lower court was that on 09.06.1998 at 11.30 a.m., while he was riding a motorcycle KL-10/G-1211 from Wandoor to Moorkhankundu and when he reached at Thiruvali, an auto rickshaw KL-10/D-3954 driven in a rash and negligent manner hit against the motorcycle as a result, he sustained serious injuries. The driver cum owner of the vehicle did not file any written statement. The insurer M.A.C.A. No.622 of 2015 2 admitted the insurance of the vehicle. The 3[rd] respondent denied the ownership of the vehicle. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A5. The disability certificate was marked as Ext.X1. Respondents documents were marked as Exts.B1, B2 & B3. The learned Tribunal awarded the following amounts as compensation. Loss of earning Rs.6,000/-, Transport to hospital Rs.500/-, Extra nourishment-Bystander expenses Rs.6000/-, Medical expenses (future treatment) Rs.46,827/-, Compensation for pain and suffering Rs.12,000/-, Compensation for the continuing or permanent disability, if any, Rs.20,160/-. The total compensation awarded by the Tribunal is Rs.91,487/(Rupees Ninety One Thousand Four Hundred and Eighty Seven only). 3. The learned counsel appearing for the appellant contended that the injured sustained serious injuries in the accident and he sustained a permanent disability at 7%. He sustained Grade III compound M.A.C.A. No.622 of 2015 3 fracture (R) knee, Acetabular fracture with hip dislocation (R), Grade III compound fracture P2(R) III toe. He also produced the treatment certificate showing that the injured requires knee replacement and for that an amount of Rs.2,50,000/- is necessary. He filed I.A. No.2414 of 2018 for accepting additional documents and I.A No.2410 of 2018 for amending the claim petition. 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.** M.A.C.A. No.622 of 2015 4 ## **[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.” 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 M.A.C.A. No.622 of 2015 5 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. 6. It is true that the injured was 19 years at the time of accident and he continued the treatment at Kasturba Hospital, Manipal for a long time. The Treatment Certificate issued by the Doctor at Kasturba Hospital, Manipal shows that consequent to the injuries sustained in the accident, he had post traumatic secondary degenerative arthritis of right knee with M.A.C.A. No.622 of 2015 6 stiffness. He has been regularly followed up in that hospital till 14.08.2017 and at present, he has severe degenerative arthritis of right knee with large sub chondral cysts and he needs to undergo total knee replacement with augments. The cost of such treatment would be noted as Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand only). The amount awarded by the Tribunal is very low and he is entitled to get just amount towards future treatment, for that, amendment of the claim petition is necessary. If any amendment application is preferred by the claimant, the respondents and insurer are at liberty to file objection to the amendment application. Even though the appellant sustained serious injuries, he did not adduce any oral evidence before the Tribunal. Considering the nature of injuries and the fact that the appellant requires knee replacement, the award of the Motor Accidents Claims Tribunal, Manjeri is hereby set aside and the matter is remitted to the Tribunal for fresh consideration. Both parties are directed to appear before the Tribunal on 16.08.2018 and they are at liberty M.A.C.A. No.622 of 2015 7 to adduce fresh evidence. The learned Tribunal is directed to consider the amendment application I.A. No.2410 of 2018, the Medical certificates and bills and dispose the matter as per law within a period of three months from the date of appearance of the parties. The amount, if any, disbursed towards compensation shall be adjusted with the final award amount. All records produced along with I.A. No.2414 of 2018 shall be forwarded to the Motor Accidents Claims Tribunal, Manjeri forthwith. ## Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge