Joy Thomas v Sunny Thomas and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 6TH DAY OF JUNE 2018 / 16TH JYAISHTA, 1940** **MACA.NO. 1191 OF 2018** **AGAINST THE AWARD IN O.P.(M.V.) NO.583/2016 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA DATED 29.12.2017** **--------------------** ## **APPELLANT(S)/CLAIMANT BEFORE THE TRIBUNAL :** **---------------------------------------** **JOY THOMAS, AGED 53 YEARS, S/O.THOMAS, EETTICKAL HOUSE, HOUSE NO.SP4/220, PETHOTTY KARA, PETHOTTY BHAGOM, SANTHANPARA VILLAGE, IDUKKI(DISTRICT)** **BY ADV.SRI.S.SACHITHANANDA PAI** ## **RESPONDENT(S)/RESPONDENTS IN THE TRIBUNAL:** **---------------------------------------** **1. SUNNY THOMAS, AGED 47 YEARS, ELLUKALAYIL HOUSE, NEDUMKANDOM KARA, THANNIMOODU BHAGOM, PARATHODE VILLAGE, IDUKKI(DT)685552 (DRIVER)** **2. MATHEW, S/O.THOMAS PEEDIKAPARAMBIL HOUSE, NEDUMKANDOM KARA, IDUKKI (DT.) 685553 (OWNER)** **3. HDFC ERGO GENERAL INSURANCE CO.LTD. 2ND FLOOR, SAFA TRADING CENTRE, RAILWAY STATION ROAD, KOTTAYAM-686 001.** **4. THOMAS VARGHESE, KANATTU HOUSE, THITTAMEL, CHENGANNUR, ALAPPUZHA(DT.) PIN:689121** **R3 BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.1191 of 2018 ---------------------------------Dated this the 6[th ] day of June, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.583 of 2016 of the Motor Accidents Claims Tribunal, Thodupuzha by the injured. Appellant sustained injuries in a motor accident on 22.05.2016 and the learned Tribunal awarded a total compensation of Rs.3,37,500/- (Rupees Three Lakh Thirty Seven Thousand Five Hundred only) with 9% interest and cost. Being aggrieved by that, he preferred this appeal. 2. In the lower court, the driver and owner of the vehicle were ex parte. The insurer admitted the insurance of the vehicle. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A9. The learned Tribunal awarded the following amounts as compensation; Transportation expenses Rs.10,000/-, Damages to clothes Rs.500/-, Extra nourishment Rs.10,000/-, Treatment expenses Rs.15,000/-, Charges for bystander M.A.C.A. No.1191 of 2018 2 expenses Rs.18,000/-, Pain and suffering Rs.10,000/-, Permanent Disability Rs.2,64,000/-, Loss of amenities Rs.10,000/-. The total compensation awarded by the Tribunal was Rs.3,37,500/- (Rupees Three Lakh Thirty Seven Thousand Five Hundred only). 3. Learned counsel appearing for the appellant contended that no amount was awarded towards loss of earning and the amount awarded for pain and sufferings is very low, hence just amount was not awarded by the Tribunal as compensation. 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 M.A.C.A. No.1191 of 2018 3 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.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 ## M.A.C.A. No.1191 of 2018 4 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 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. Apex Court in **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)]** held as follows: 61. In view of the aforesaid analysis, we proceed to record our conclusions:- M.A.C.A. No.1191 of 2018 5 (i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before. (vi) The selection of multiplier shall be as indicated in the M.A.C.A. No.1191 of 2018 6 Table in Sarla Verma read with paragraph 42 of that judgment. - (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 7. Appellant is a pastor by profession and he is also doing agricultural work. Considering these aspects, the learned Tribunal took Rs.9,000/- as his monthly income. Considering his future prospects, 10% enhancement was also added along with the income in view of **National Insurance Company V. Pranay Sethi** **[2017 (4) KLT 622 (SC)]** . No circumstances are brought before me to increase the monthly income, hence the income taken by the Tribunal is confirmed. Even then, he is entitled to get just amount as compensation. He had under above knee slab for three months, therefore he is entitled to get loss of income for four months at the rate of Rs.9,000/-, that is Rs.36,000/-. In addition to that, an amount of Rs.10,000/- is awarded for Pain and Sufferings. ## M.A.C.A. No.1191 of 2018 7 No further increase is necessary on other heads. Accordingly, the appellant is entitled to get an enhanced compensation of Rs.46,000/- (Rupees forty six thousand only) with 9% interest per annum from the date of petition till realisation with proportionate cost in addition to Rs.3,37,500/- (Rupees Three Lakh Thirty Seven Thousand Five Hundred only) awarded by the learned Tribunal. The insurer is directed to satisfy the award within a period of thirty 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 M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ NS P.A. To Judge