High Court of KeralaSingle JudgeDisposed of

JITHENDRAN v. PRAKASH and OTHERS (MACA No. 2841 of 2008)

Case / Petition Number:MACA.No. 2841 of 2008

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. D. Rajan
Judgment Date
2018-09-11
Court Decision / Holding
Enhanced compensation of Rs. 8,57,432 with 9% interest from the date of petition till realization, plus proportionate costs. The insurer is directed to satisfy the award within 30 days from receipt of a copy of the judgment, failing which 12% interest will accrue from the date of default. The appeal is disposed of accordingly.
Final Disposition
Disposed of

Parties to the Case

Appellants / Petitioners

  • JITHENDRAN

Respondents

  • Prakash
  • Raghavendra
  • The New India Assurance Co. Ltd. (Malleswaram Branch)

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. P. V. Chandra Mohan

Counsels for Respondents

  • • Sri. Lal George

Case Synopsis & Summary

This motor accident claims appeal arises from a MACT Thrissur award. On 13 April 2001, the appellant, Jithendran, who was travelling as a pillion rider, sustained serious injuries in a road collision involving a car driven rashly and negligently. The Tribunal awarded Rs.5,74,320 with 7% interest and costs. The appellant contends the income and disability assessment were not correctly determined, and contends that he is fully disabled. The lower court’s case record shows the accident occurred on the Trissur–Kunnamkulam road, with the driver and owner ex-parte, and the insurer admitted coverage. The claimant’s evidence included multiple witnesses and Exts. A1–A24, while the insurer produced Ext. B1. The appellant’s case before the High Court argued that the jewelry worker’s monthly income should be Rs.4,500 and that the disability ought to be treated as 100%, as per Ext. A13, which allegedly shows 69% permanent disability but the claimant’s condition has since worsened. The court follows established jurisprudence on quantum of damages, citing Yadava Kumar that compensation aims to restore the claimant as far as money can, and applying the multiplier method. It accepts that 40% future prospects should be added (Pranay Sethi) and that income should be Rs.4,500 (Syed Sadiq) in absence of contrary evidence, leading to a revised assessment. The court determines the enhanced compensation by calculating potential earnings with future prospects and disability, applies additional heads from R.D. Hattangadi and Raj Kumar, and finally awards Rs.8,57,432 as enhanced compensation with 9% interest and costs. The insurer is directed to satisfy the award within 30 days, failing which 12% interest will accrue on default. The appeal is disposed of accordingly.

Legal Doctrines & Maxims

  • The victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must give him full and fair compensation (Yadava Kumar v. D.M. National Insurance Co. Ltd.)
  • Compensation is the basis to place the claimant in the same position as before the injury; perfect compensation may be elusive but must be fair and reasonable
  • The conventional basis of addressing damages is to apply the multiplier method for pecuniary loss; non-pecuniary losses must reflect the claimant’s circumstances
  • There can be no uniform standard for assessment; discretion is broad and must reflect the injury and evidence
  • Injury income should reflect actual earnings; where evidence is inconclusive, courts may use established benchmarks (e.g., Rs.4500 as income) and apply future prospects (40%) per Pranay Sethi)
  • Award of additional heads such as pain, suffering, loss of amenities, and future medical expenses may be warranted (R.D. Hattangadi; Raj Kumar)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the pre-trial income should be Rs.4,500 per month for a jewellery worker, and that the disability should be treated as 100% given the claimant’s current condition. It is argued that the Tribunal erred by using a lower monthly income (Rs.2,000) and by not adequately considering the extent of disability and future prospects. The appellant relies on established jurisprudence to claim higher compensation under pecuniary and non-pecuniary heads, and seeks application of the multiplier method to compute damages.

Contentions of Respondents

The respondents acknowledge liability and do not dispute the accident in the lower court. Their stand is to defend the Tribunal’s assessment and the original award, contesting any drastic deviations in the amount of compensation. They rely on the evidence presented and oppose assumptions about disability or income beyond what Ext. A13 shows, and challenge the quantum calculation and the proportional adjustments later asserted by the appellant.

Cited Precedents (5)

Case NameCitationTreatmentExplanation
Yadava Kumar v. D.M. National Insurance Co. Ltd.2010 (8) SCALE 567PositiveApex Court reiterates compensation as the basis for personal injuries and the need to provide fair/adequate compensation.
Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd2014 (2) SCC 735PositiveIncome taken as Rs.4,500 in absence of contrary evidence; 40% addition to future prospects applied.
National Insurance Company v. Pranay Sethi2017 (4) KLT 662 (SC)PositiveFormal adoption of 40% addition to future prospects in determining compensation.
R.D Hattangadi v. Pres Control India (Pvt.) Ltd1995 ACJ 366PositiveAuthority for awarding additional heads such as pain and suffering, loss of amenities, and future medical expenses.
Raj Kumar v. Ajay Kumar2011(1) KLT 620 (SC)PositiveSupport for additional compensation heads in injury awards.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** ## **MACA.No. 2841 of 2008** **AGAINST THE AWARD IN OPMV 2468/2001 OF MACT, THRISSUR** ## **APPELLANT/PETITIONER:** **JITHENDRAN (TOTALLY PARALYSED AND MENTALLY INFIRMED AND UNCONSCIOUS), S/O.RAMADAS, PALUVAYIL HOUSE, PERUVANAM, CHERPU P.O., THRISSUR, DISTRICT, REPRESENTED BY HIS GUARDIAN, NEXT FRIEND AND MOTHER VASANTHI, W/O.LATE RAMADAS, PALUVAYIL HOUSE, PERUVANAM, CHERPU P.O, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 PRAKASH, S/O.SUBRAMANYA IYYER, 76/A, U.G.RAO NAGAR, GANAPATHY, COIMBATORE.** - **2 RAGHAVENDRA, S/O.JOSHI, C/O.DAKAPPA, JAIPAT NAGAR, 2ND STAGE, SHIMOGA, KARNATAKA.** - **3 THE NEW INDIA ASSURANCE CO.LTD MALLESWARAM BRANCH OFFICE, BANGALORE. BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 2841 of 2008 -2- ## **JUDGMENT** This appeal is preferred against the award in O.P.(M.V.) No.2468 of 2001 of the Motor Accidents Claims Tribunal, Thrissur by the injured. On 13.4.2001, the appellant sustained injuries in a motor accident while travelling as a pillion rider and the learned Tribunal awarded compensation of Rs.5,74,320/- with 7% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal. 2. The accident was not disputed by the respondents in the lower court. The claimant's case in the lower court was that on 13.4.2001 at 10.50 a.m, he was travelling as a pillion rider in a motorcycle KL-8/H 9664 through TrissurKunnamkulam public road and when he reached at Muthuvara, a car MER/4747 driven in a rash and MACA.No. 2841 of 2008 -3- negligent manner hit against the motorcycle, as a result, the rider and the pillion rider sustained serious injuries. Immediately, they were removed to the hospital. The driver and the owner of the vehicle were set ex-parte in the lower court. The insurer admitted the insurance of the vehicle. 3. This case was tried along with O.P. (M.V.) No.2469 of 2001 and 2775 of 2001. The claimant's evidence consist of oral testimony of PW1 to PW3 and Exts.A1 to A24. The respondent's evidence consists of Ext.B1. 4. The learned counsel appearing for the appellant contended that the injured is a jewellery worker and was getting Rs.4,500/- per month. The learned Tribunal took Rs.2000/- only as the monthly income. Ext.A13 disability MACA.No. 2841 of 2008 -4- certificate shows permanent disability of 69%. Now, he is fully paralysed and present disability is 100%. Just amount was not awarded by the Tribunal to the victim. Even though the appellant contended that he has 100% disability, he failed to prove that aspect with convincing medical evidence and hence his disability is taken as 69% as certified by the doctor. 5. 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: _“ 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_ MACA.No. 2841 of 2008 -5- _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 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 MACA.No. 2841 of 2008 -6- 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 ## MACA.No. 2841 of 2008 -7- 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. 7. The respondents have no dispute with regard to the permanent disability and occupation. In view of _**Syed Sadiq and others v.**_ _**Divisional Manager, United India Insurance**_ _**Company Ltd (2014 (2) SCC 735)** ,_ the income is taken as Rs.4,500/- in the absence of any contra evidence. In view of _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]** ,_ 40% is ## MACA.No. 2841 of 2008 -8- added to his future prospects. The total income is Rs.6,300/-. Hence, the disability compensation is 6,300 x 12 x 18 x 69/100 = 9,38,952/-. The learned Tribunal awarded Rs.2,81,520/-. The balance disability compensation is Rs.6,57,432/-. 7. In view of _**R.D Hattangadi v. Pres Control India (Pvt.) Ltd (1995 ACJ 366) and Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]** ,_ the following additional amount is awarded: - Pain and suffering Rs.50,000 - Loss of amenities Rs.50,000 - Future medical expenses Rs.1,00,000 ----------Rs.2,00,000 =========== Hence, the appellant is entitled to get enhanced compensation of Rs.8,57,432/- (Rupees eight lakhs fifty seven thousand four hundred and MACA.No. 2841 of 2008 -9- thirty two only) with 9% interest from the date of petition till realisation with proportionate cost in addition to the award amount. 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. This appeal is disposed of as above **.** ## **Sd/-** ## **P.D.RAJAN** **JUDGE** Scl.12.9.18