Joy Aged 39 Years (Died) S/O Varkey; Sophy W/O Joy Mangattumolayil; Sona Joy D/O Joy (Minor) represented by Next Friend Mother, Sophy W/O Joy Mangattumolayil v. Ibrahimkutty S/O Musthafa; KM Shamsudheen; The Branch Manager, National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 09TH DAY OF JANUARY 2019 / 19TH POUSHA, 1940** ## **MACA.No. 190 of 2014** **AGAINST THE AWARD IN OPMV 537/2009 of MACT MUVATTUPUZHA DATED 2408-2013** ## **APPELLANTS/PETITIONERS:** - **1 JOY AGED 39 YEARS (DIED) S/O.VARKEY, MANGATTUMOLAYIL HOUSE, THONNICKA KARA, IKKARANADU NORTH VILLAGE.** - **2 SOPHY WO.JOY MANGATTUMOLAYIL HOUSE, THONNICKA KARA, IKKARANADU NORTH VILLAGE.** - **3 SONA JOY D/O.JOY MINOR REPRESENTED BY NEXT FRIEND MOTHER, SOPHY W/O.JOY, MANGATTUMOLAYIL HOUSE, THONNICKA KARA, IKKARANADU NORTH VILLAGE.** **BY ADV. SRI.JOY C. PAUL** ## **RESPONDENTS/RESPONDENTS:** - **1 IBRAHIMKUTTY S/O.MUSTHAFA, PARIYARATHU HOUSE, KUMARAPURAM, PERINGALA KARA, ERNAKULAM, PIN: 683 565.** - **2 K.M.SHAMSUDHEEN, KOYAPARAMBIL HOUSE KUMARAPURAM, PERINGALA KARA, ERNAKULAM, PIN: 683 565.** - **3 THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, KOLENCHERY, PIN: 682 311.** - **BY ADV. SRI.RAJESH THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 190 of 2014 2 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.537/2009 of Motor Accidents Claims Tribunal, Muvattupuzha by the claimants. After filing the application the injured died and his legal representatives were impleaded as additional respondents. On 08.11.2006 at 6.50 pm, one Joy sustained serious injuries in the accident and the Motor Accidents Claims Tribunal awarded compensation of Rs.1,01,400/-. There was contributory negligence from the side of Joy and the Motor Accidents Claims Tribunal awarded 50% of the compensation. Hence this appeal. 2. It is relevant and useful to refer the facts leading to the accident. On 08.11.2006 at 6.50 pm, the injured was travelling in a bus KL-17/A 1341 through Ernakulam - Muvattupuzha NH road. The first respondent driven the vehicle in a rash and negligent manner, when he reached in front of Block Panchayat Office, Vadavukode, the driver of the vehicle swerved the vehicle, as a result Joy was thrown out from the bus and sustained injuries. Immediately he was removed to hospital. The driver and owner were set ex-parte. MACA.No. 190 of 2014 3 The insurer contended that when the injured reached at the place of occurrence, he jumped out from the moving bus near the bus stop, who was under the influence of alcohol thereby he sustained injuries. Claimants evidence consist of oral testimony of PW1 and documentary evidence of Exts.A1 to A6. A copy of the policy was marked as Ext.B1 by the respondents. 3. 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. 4. 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 MACA.No. 190 of 2014 4 ## 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)._ _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_ MACA.No. 190 of 2014 5 _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”._ 5. The evaluation 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 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 MACA.No. 190 of 2014 6 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 an admitted fact that the injured Joy after filing of the claim petition. His wife and children were impleaded as additional claimants who examined. An autorickshaw driver as PW1, his evidence shows that he was standing near the place of occurrence. His evidence shows that the driver of the bus had driven the vehicle in a rash and negligent manner, due to the impact two persons from the bus thrown out of the bus and Joy sustained serious injuries. But, the Tribunal observed that it was due to the contributory negligence of Joy. The Police registered a case against the driver of the bus, subsequently the case was referred. Ext.A1 is the F.I.R. Ext.A2 is the scene mahazar. Ext.A3 is the refer report. Ext.A4 is the wound certificate and Ext.A5 is the discharge summary. Even though the respondent, insurer contended that the injured jumped from the bus after consuming alcohol, no evidence has been adduced by the insurer to substantiate that contention. The investigating MACA.No. 190 of 2014 7 officer was not examined and other occurrence witnesses were also not examined. If that be the position, the finding of the contributory negligence, itself, is hereby set aside. Even though the case is referred, the accident is out of the use of a motor vehicle in a public way and the insurer is liable to indemnify the owner of the vehicle. 7. The injured is entitled to get just amount as compensation. Ext.A5, discharge summary shows that Joy sustained right temporal fracture, right parieto occipital EPI dural hematoma with overlying fracture, diffuse subarachonid haemorrhage, cerebral edema, intraventricular haemorrhage, bifrontal contusion and left temporal contusion _._ Ext.A5 discharge summary shows that he sustained serious injuries. Subsequently he died. The learned Tribunal awarded the following amount as compensation. 1. Loss of earnings Rs.12,500/2. Pain and sufferings Rs.20,000/3. Loss of amenities Rs.16,000/4. By-stander expenses Rs.2,400/5. Extra nourishment charges Rs.3,000/6. Transportation expenses Rs.500/7. Medical treatment charges Rs.47,000/- **Total Rs.1,01,400/-** MACA.No. 190 of 2014 8 8. The injured Joy was doing hotel work and was getting Rs.5,000/- per month. He did not produce any documents to prove the income. 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/- and the following enhanced amount is awarded as compensation. The learned counsel submitted that he submitted medical bills for Rs.86,000/- and Rs.47,000/- alone was awarded by the Tribunal. Considering the above submission, the following additional amount is awarded. Loss of income for six months is Rs.27,000/-. The Tribunal awarded Rs.12,500/- and the balance amount is Rs.14,500/-. 1. Loss of earnings Rs.14,500/2. Pain and sufferings Rs.20,000/------3. Loss of amenities 4. By-stander expenses Rs.5,000/5. Extra nourishment charges Rs.2,000/6. Transportation expenses Rs.1,000/7. Medical treatment charges Rs.10,000/- **Total Rs.52,500/-** 9. This court in _**Vidhuran Yooda Thadevoos v. Kerala State Road Transport Corporation (2013 (3) KLT**_ MACA.No. 190 of 2014 9 _**629),**_ held that the passenger can travel in a bus by standing at rear side or front side. When there is no evidence to prove contributory negligence, the finding of contributory negligence against the injured is hereby set aside. The appellants are entitled to get enhanced compensation of Rs.52,500/- (Rupees Fifty Two Thousand Five Hundred only) with 9% interest and proportionate cost along with the awarded amount of Rs.1,01,400/- (Rupees One Lakh One Thousand Four Hundred only) with interest and cost. 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** bng/10.01.19