JAYARAJ v. SHAJU KALAPPURAKKAL; RAMACHANDRAN; THE MANAGER, NATIONAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY ,THE 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940** ## **M.A.C.A.No. 2166 of 2016** **AGAINST THE AWARD IN OPMV 658/2012 of MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA DATED 29-01-2016** ## **APPELLANT/PETITIONER:** **JAYARAJ** **AGED 48 YEARS, S/O.GOPALAN, KARUMANTHARA HOUSE, NEAR EDAKKULAM SAMAJAM SCHOOL, POOMANGALAM VILLAGE, EDATHIRINJI P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** **1 SHAJU KALAPPURAKKAL HOUSE, KIZHUTHANI, P.O.THANISSERY, THRISSUR DISTRICT, PIN - 680 701.** **2 RAMACHANDRAN, S/O.MAMANKUTTY, KORATTIPARAMBIL HOUSE, CHETTIYAL DESOM, EDATHIRINJI VILLAGE, P.O, THRISSUR DISTRICT, PIN-680 122.** **3 THE MANAGER NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, MAIN ROAD, IRINJALAKUDA, THRISSUR DISTRICT, PIN-680 121.** **BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 2166 of 2016** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)No. 658 of 2012 of Motor Accidents Claims Tribunal, Irinjalakuda by the injured. Appellant sustained injuries in a motor accident and he filed a claim petition under Section 166 of the Motor Vehicles Act 1988 and the Motor Accidents Claims Tribunal awarded Rs.3,72,414/- as compensation. Being dissatisfied by the award amount, the injured preferred this appeal. 2. It would be relevant and useful to mention the facts leading to this accident. On 26-05-2012 at 2.15.pm, appellant was riding a motor cycle KL-8/S-7793 through Moonupeedika – Irinjalakuda Public road, when he reached west of Government High Girls High School, a car KL-7/A-5909 driven in a rash and negligent manner hit against the motor cycle. As a result, appellant was thrown away and sustained serious injuries. The accident was due to the rash and negligent driving of the car by its driver. The owner and driver were set ex-parte. The insurer admitted the insurance of the vehicle. Petitioners evidence consist of oral testimony of PW1 and documentary evidence of Ext.A1 to A14. Appellant contended that he sustained permanent disability of 15.49%. He was aged 44 years at the time of the **M.A.C.A.No. 2166 of 2016** **3** accident and was working as Document Controller in Doha Petroleum Construction Company and he was earning Rs.60,000/- per month. Ext.A14 corroborates his contention which was counter signed by Embassy of India, Doha. The Motor Accidents Claims Tribunal took Rs.7,000/- as his monthly income for calculating disability compensation. As per Ext.A14, he was getting 5227 Quatari Riyals. Now he is permanently disabled and unable to do any work. He is entitled to get just amount as compensation. 3. Apex Court in _**Yadava Kumar**_ v. _**D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567)**_ reiterated the principle in relation to the assessment of damages for personal injuries cases as follows: _“ 17. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW1 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome._ _18. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a 'just compensation'. It is obviously true that determination of a just compensation cannot_ **M.A.C.A.No. 2166 of 2016** **4** _be equated to a bonanza. At the same time the concept of 'just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field._ _Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (See_ _**Mrs. Helen C. Rebello and Ors. v. Maharashtra State Road Transport Corpn. and Anr.** MANU/SC/0621/1998: AIR 1998 SC 3191)._ _19. This Court also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (See_ _**Hardeo Kaur and Ors. v. Rajasthan State Transport Corporation and Anr.** MANU/SC/0235/1992: (1992) 2 SCC 567)._ _20. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation”._ **M.A.C.A.No. 2166 of 2016** **5** 4. In personal injury cases the compensation has to be assessed separately as pecuniary and special damages. The object behind this is to compensate the injured 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. Ext.A3 wound certificate shows that he sustained serious injuries. 1. Crush injury right foot with fracture calcaneum, 2. Fracture pelvis and acetabulam, 3. Fracture superior and inferior public rami, 4. Fracture floor of acetabulam right, 5. Displaced fracture posterior column of right iliac wing, 6. Displaced fractures involving both anterior and posterior column and wall, 7. Multiple facial laceration, 8. Head injury-cerebral concussion, 9. Lacerated wound over left side of face below left eye, 10. Haematoma above left eye, 11. Deep lacerated wound extending from middle of right sole, 12. Incised wound over the left side of face below the eye, 13. Contusion upper lip. As per Ext.A7 and A8 discharge summaries he was admitted in Elite Mission Hospital, Thrissur **M.A.C.A.No. 2166 of 2016** **6** from 26-05-2012 to 28-06-2012 and 04-07-2012 to 10-07-2012. On 27-05-2012 and 18-06-2012 he has undergone multiple surgeries for wound debridement and skin grafting etc. Ext.A9 C.T.Scan report issued from Elite Mission Hospital corroborate the injuries. The above evidence shows that petitioner sustained injuries in a motor accident. 5. The evidence shows that the appellant was permanently disabled. Ext.A10 is the disability certificate issued by the doctor Jose Kurian Kattukkaran. The doctor was examined as PW1 before the Motor Accidents Claims Tribunal. His evidence shows that 1. Mlunited fracture right calcaneum, 2. Thin adherent scar on medical side of rt ankle, 3. Limitation of dorsiflexion or rt ankle of 20%, plantar flexion of 20%, inversion and eversion of 10% each,++ 4. weakness of dorsiflexion, plantar flexion of 10% each sensory deficiency on the lateral three toes of right foot due to popst traumatic neurolysis, 6. Limitation of hip flexion, adduction and external rotation of 10% each and extension and abduction of 15%, 7. Weakness of rt hip flexion of 15% abduction of 20%, adduction of 10%. Functionally he is having difficulty to squat, to climb up and down, to stand on right leg for 2 minutes, to walk for long, to run, to jump, to stand on right heel, to press, pedal, kick with right foot, to turn on right ankle, to walk on **M.A.C.A.No. 2166 of 2016** **7** uneven grounds, to sit for long, to bend on right hip or turn on right hip. Appellant contended that the Tribunal reduced the disability from 15.49% to 10 %. This is against the principles settled by the Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ held that, if a doctor gives evidence about the percentage of permanent disability the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage. No clarification was obtained by the Tribunal about the disability. In the absence of such opinion the reduction is unsustainable and the percentage of disability is 15.49%. 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 **M.A.C.A.No. 2166 of 2016** **8** 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. The appellant was working as a Document Controller and was getting 5227 Quatari Riyals. The above salary certificate Ex.A11 was counter signed by Embassy of India, Doha. Ext. A14 was issued by the Doha Petroleum Construction Company and no contra evidence has been adduced by the respondent to rebut the evidence in Ext.A14. When a document was counter signed by Indian Embassy, Doha, Ext.A14 is admissible. For calculating disability compensation according to Indian Standard I take Rs.10,000/- as his monthly income. He was aged 44 years at the time of accident and multiplier is 14. The disability compensation is Rs.10,000x12x14x15.49/100=2,60,232/-. The learned Tribunal awarded Rs.1,17,600/- and the balance amount is Rs.1,42,632/-. The following additional amount is awarded along with that for pain and suffering Rs.1,00,000/- and loss of amenities Rs.1,00,000/-. Therefore the appellants are entitled to get an enhanced compensation of Rs.3,42,638/- (Three Lakhs Forty Two **M.A.C.A.No. 2166 of 2016** **9** Thousand Six Hundred and Thirty Eight Only) with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the award amount 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. Sd/- **P.D.RAJAN** nak **JUDGE**