Joshy S/O Lonappan v. United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** **M.A.C.A.No. 1876 of 2018** **AGAINST THE AWARD IN OPMV 1429/2014 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 23-04-2018** ## **APPELLANT/PETITIONER:** **JOSHY S/O LONAPPAN, KAPPANI HOUSE, ALAGAPPA NAGAR DESOM & PO, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT/2ND RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LTD. 1ST FLOOR, AYYAPPA COMPLEX, OPP. SASTHA MEDICALS, WADAKKANCHERY -680582.** **BY ADV. R.REMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 1876 of 2018** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)No.1429/2014 of Motor Accidents Claims Tribunal, Irinjalakuda by the injured. Appellant sustained injuries in a motor accident and the Motor Accidents Claims Tribunal awarded compensation of Rs.5,23,420/- and directed the insurer to satisfy the award. Being dissatisfied by that award amount, the injured preferred this appeal. 2. It is relevant and useful to mention the facts leading to this accident. On 17-08-2014 at 8.pm, the appellant was standing on the eastern side of the NH road at Nellayi, at that time a motor cycle KL 48 E 7978 driven in a rash and negligent manner hit against the appellant. He sustained serious injuries immediately he was removed to hospital. The respondent No.1 was set ex-parte in the lower court. The second respondent admitted the insurance of the vehicle. Claimant did not adduce any oral evidence but his documents were marked as Ext. A1 to A11. The disability certificate issued from the District Medical Board was marked as Ext.X1. The copy of the policy was marked **M.A.C.A.No. 1876 of 2018** **3** ## as Ext.B1. 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 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)._ **M.A.C.A.No. 1876 of 2018** **4** _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”._ 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. 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 **M.A.C.A.No. 1876 of 2018** **5** 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. The appellant is a mason by profession aged 42 years, he was earning Rs.25,000/- per month and the learned Tribunal has taken Rs.6,500/- as his monthly income for calculating disability compensation. Future prospects was also not considered by the Tribunal since he sustained permanent disability of 25.33%. As a mason the above disability will affect his masonary work and functional disability in future for doing his avocation. As a mason he is entitled to get just amount as compensation. It is an admitted fact that the disability will affect his future earning. Therefore in view of _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ 25% **M.A.C.A.No. 1876 of 2018** **6** has to be added towards future prospects. As a mason he is entitled to get Rs.10,000/- as his monthly income. Even though he stated that he is getting Rs.25,000/- per month, no doccuments were produced to prove the income. The respondents did not adduce any contra evidence to reduce the income of the appellant. 6. 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. As a mason his income is taken as Rs.10,000/- according to the following decision of Apex Court in _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ , if 25% is added towards future prospects the monthly income is Rs.12,500/-. The disability compensation is Rs.12,500x12x14x25.33/100=Rs.5,31,930/-. Tribunal **M.A.C.A.No. 1876 of 2018** **7** awarded compensation of Rs.3,38,520/- and the balance amount is Rs.1,93,410/-. The following additional amount is awarded as compensation. |arded as compensation.||| |---|---|---| |Head of claim|Amount<br>Awarded<br>(Rs.)|Modified<br>Amount<br>(Rs.)| |Loss of earnings|39,000|21,000| |Transportation expenses|3,000|Nil| |Extra nourishment|2,000|Nil| |Damage to clothing|1,000|Nil| |Attendant expenses|3,000|Nil| |Medical expenses|36,900|Nil| |Pain and suffering|70,000|Nil| |Permanent Disability|3,38,520|1,93,410| |Loss of amenities|30,000|25,000| |Loss of earning power|Nil|Nil| |Dis figuration|Nil|Nil| |Mental dejection|Nil|Nil| |Anticipated medical expense|Nil|Nil| |Total|5,23,420|2,39,410| **M.A.C.A.No. 1876 of 2018** **8** 7. Therefore the appellant is entitled to get an enhanced compensation of Rs.2,39,410/- (Rupees Two Lakhs Thirty Four Thousand Four Hundred and Ten only) with 9% intererst and proportionate cost. The insurer is directed to satisfy the award within 30 days from the date 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** nak **JUDGE**