K. Komalan Nair v. The Manager, New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** **MACA.No. 2567 of 2018** **AGAINST THE AWARD IN OPMV 647/2007 of MACT,TRIVANDRUM** ## **APPELLANT/PETITIONER:** **K. KOMALAN NAIR AGED 79 YEARS S/O.KRISHNA PILLAI, VISAKH, TC 19/2306, VATTAVILA, THIRUMALA, THIRUVANANTHAPURAM, REP. BY WIFE LEELAMMA** **BY ADVS. S. KRISHNAMOORTHY SMT.SNEHA ROSE** ## **RESPONDENTS/RESPONDENTS:** - **1 K.MURALIDHARAN TC 10/1480, MUDAVANMUGHAL, POOJAPPURA, THIRUVANANTHAPURAM-695012** - **2 MADHUSOODANAN NAIR M, S/O MADHAVAN PILLAI,PAVARTHALAMELE, THIRUMALA,THIRUVANANTHAPURAM - 695006** **3 THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD,2ND FLOOR,SWADESHABHIMANI COMPLEX,NEAR KSRTC BUS STAND NEYYATTINKARA - 695121. BY ADV. SRI.M.M.IRSHAD MOOPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 2567 of 2018 2 ## **JUDGMENT** This appeal is preferred against the award in O.P. (MV)No.647/2007 of the Motor Accidents Claims Tribunal, Thiruvananthapuram by the injured. The appellant was aged 64 years, who sustained injuries in a motor accident and permanently disabled. The Motor Accident Claims Tribunal awarded compensation of Rs.6,26,400/- with interest and proportionate cost and directed the insurer to satisfy the award. Being aggrieved by that, the injured preferred this appeal. 2. It would be relevant and useful to refer the facts leading to the accident. The claimant's case was that on 04.09.2006 at 8.30 pm, he was riding a scooter KL-01/P-7652 with his wife as a pillion rider through Thirumala - Poojapura public road, when they reached near Sreekrishna hospital at Thirumala, another vehicle KR-o-4183 driven in a rash and negligent manner from the back side and hit against the scooter. As a result, the rider and pillion rider were thrown away and sustained injuries. Immediately, they were removed to hospital. The driver and owner of the vehicle were set ex- MACA.No. 2567 of 2018 3 parte. The insurer admitted the insurance of the vehicle. This case was tried along with OP(MV) No.646/2007. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A17. Respondents did not adduce any evidence. 3. Appellant contended he sustained serious head injuries. Now he is fully bed ridden and unable to do any work. He was conducting an Ayurvedic shop after retirement from Govt. service and getting monthly income of Rs.5,000/-. Just amount was not awarded by the Tribunal. The learned counsel appearing for the insurer contended that just amount was awarded by the Tribunal and no amount was added towards future prospects. The insurer has no dispute with regard to the accident and injuries. They did not file any appeal or cross objection against the claim petition. 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 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_ MACA.No. 2567 of 2018 4 _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 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 MACA.No. 2567 of 2018 5 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 wound certificate Ext.A6 shows that he sustained severe head injury, haemorrhagic contusion right frontal, left temporal haemorrhagic contusion, left lateral ventricle haemorrhage, inter hemispheric (SAH) sub arachnoid haemorrhage, abrasion on the right forearm, lacerated wound on the right elbow, contusion on right side of the head and subsequent post traumatic normal pressure hydrocephalus which required V.P shunt surgery. The treatment certificates Exts.A7 and A8 show that he continued treatment for a long time. Exts.A9 to A13 scan reports corroborated the injuries. In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to compensate 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 MACA.No. 2567 of 2018 6 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. ## 6. Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ held as follows: _“where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of_ MACA.No. 2567 of 2018 7 _the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation._ The disability certificate Ext.A15 shows 20% permanent disability, which shows that the disability will affect his earning capacity. Ignoring the injuries and disability, the learned Tribunal reduced the disability from 20% to 15% without further medical opinion. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. MACA.No. 2567 of 2018 8 On appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. If there is any dispute with regard to loss of earning capacity and disability, the Tribunal has to refer the injured to another Medical Board in view of _**Rajkumar's**_ case (supra) and obtain a new disability certificate before reducing the disability. 7. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. There can be no uniform standard and yardstick provided for assessing such compensation. When more 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 MACA.No. 2567 of 2018 9 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. 8. In view of _**Rajkumar's**_ case (supra), the reduction of the disability from 20% to 15% is hereby set aside and the appellant is entitled to get 20% disability. Now he is undergoing treatment. Hence, the disability will affect his earning capacity and for calculating compensation future prospects also has to be considered. Therefore, this court award Rs.2,00,000/- towards disability compensation. The learned Tribunal awarded Rs.63,000/- and the balance amount is Rs.1,37,000/-. The appellant is now continuing further treatment and still he is suffering from pain and sufferings. Therefore, in addition to that, additional Rs.80,000/- towards pain and suffering, Rs.50,000/- towards loss of amenities and Rs.50,000/- towards future treatment are awarded. 9. The following amount is awarded as compensation. MACA.No. 2567 of 2018 10 |Sl<br>No|Head of Claim|Amount<br>awarded by<br>Tribunal|Additional<br>Amount<br>awarded by<br>this court| |---|---|---|---| |1|Partial loss of earning from<br>05/09/2006 till date|Nil|------| |2|Transport to Hospital|Rs.3,000/-|------| |3|Damage to clothing and other<br>personal articles|Rs.1,000/-|------| |4|Extra nourishment|Rs.5,000/-|------| |5|By stander expenses|Rs.12,000/-|-------| |6|Physiotherapist|Nil|Nil| |7|Compensation for pain and<br>suffering, mental and physical<br>shock|Rs.20,000/-|Rs.80,000/-| |8|Compensation for continuing of<br>permanent disability|Rs.63,000/-|Rs.1,37,000/-| |9|Inconvenience, hardship,<br>discomfort disappointment,<br>frustration and mental stress|Nil|Nil| |10|Compensation for loss of earning<br>power|Nil|Nil| |11|Compensation for loss of<br>expectation of life|Nil|Nil| |12|Compensation for loss of<br>amenities in life|Rs.18,900/-|Rs.50,000/-| |13|Expenses for medical treatment|Rs.5,03,500/-|Rs.50,000/-| ||**Total**|**Rs.6,26,400/- **|**Rs.3,17,000/-**| The appellant is entitled to get enhanced compensation of Rs.3,17,000/- (Rupees Three Lakhs Seventeen Thousand only) MACA.No. 2567 of 2018 **==> picture [16 x 8] intentionally omitted <==** with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the enhanced compensation 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. The interest awarded by the Tribunal in the claim petition is modified as 9%. This appeal is disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng/18.12.18