K. V. Rajappan Pillai v. Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940** **MACA.No. 1837 of 2012** **AGAINST THE AWARD IN OPMV 441/2005 of MACT,PATHANAMTHITTA DATED 20-06-2012** ## **APPELLANT/PETITIONER** **K.V.RAJAPPAN PILLAI KALAKATTU HOUSE, CHETHACKAL P.O.,RANNY** **BY ADVS.SRI.T.K.KOSHY** **SMT.V.V.RISANI** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** - ***1. N.K.MUHAMMED SHERIEF S/O.NOORDINKUNJU,ATHICHAPPURAM HOUSE, ELIPPAKULAM** - **P.O.,PALLICKAL, MAVALIKKARA-690501 (DELETED)** - ***2. MOHANAN R** **S/O.RAGHAVAN PILLAI, SREENILAYAM VEEDU,** **PEROORKARAYIMA,THAMARAKULAM P.O.,CHARUMMOODU -690530,(DELETED)** **3. THE BRANCH MANAGER,** **THE ORIENTAL INSURANCE CO LTD, KANNEL COMPLEX, KAYAMKULAM-690502** - **(* R1 AND R2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 23.02.2017 IN I.A NO.587/17)** **R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BNG** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.1837 of 2012 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 14[th] day of June, 2018 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.441/2005 of the Motor Accidents Claims Tribunal, Pathanamthitta. The appellant sustained serious injuries in a motor accident on 01.07.2003, while he was travelling in a bus KLA 9601 and the learned Tribunal awarded compensation of Rs.3,56,200/-. Being aggrieved by that, the injured preferred this appeal. 2. The accident was not disputed by the respondents in the lower court. It is admitted fact that the injured was passenger in KLA 9601 along Kaippattoor - Pathanamthitta public road, when he reached in front of the Pandakasala Babu's house, another vehicle KL-7 J 4876 driven in a rash and negligent manner, hit against the appellant's vehicle. As a result, he sustained serious injuries. The driver and owner of the vehicle were set exparte. The insurer admitted the insurance of the vehicle. The claimant did not adduce any oral evidence, but his ## **M.A.C.A No.1837 of 2012** **-2-** documents were marked as Exts.A1 to A9. 3. The learned counsel appearing for the appellant contended that appellant sustained loss of vision to both eyes and 100% disability. The learned Tribunal took only 50% disability without referring the injured to another Medical Board. He was a timber business man and was getting Rs.8,000/- per month and the Tribunal took only Rs.3,000/-. Hence, the appellant is entitled to get just amount as compensation. 4. 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 to determine, but award must reflect that different circumstances have been taken into consideration. Hence, the multiplier method has to be ## **M.A.C.A No.1837 of 2012** **-3-** 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 case would differ from person to **-4-** ## **M.A.C.A No.1837 of 2012** 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. The appellant sustained serious injuries in the accident. Ext.A7 is the discharge card. Ext.A8 is the Medical certificate issued by Dr.Sabitha, Eyes Specialist, General Hospital, Pathanamthitta, who certified that the ## **M.A.C.A No.1837 of 2012** **-5-** appellant has a permanent visual disability of 100%. Ext.A9 is the disability certificate issued by the District Medical Board Hospital, Pathanamthitta, which shows 100% visual disability with Psychiatrist, Orthopedician, Ophthalmologist and ENT Surgeon as the members of the Medical Board. After detailed examination, they certified that permanent disability 100% and he belongs to total category. ## 7. 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_ **-6-** ## **M.A.C.A No.1837 of 2012** _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 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._ Without obtaining further medical opinion, the Tribunal is unjustified in reducing the disability from 100% to 50%, since the Tribunal is not an expert in that field for assessing the disability. Therefore, 100% disability can be taken for awarding the just compensation. ## **M.A.C.A No.1837 of 2012** **-7-** 8. The appellant was engaged in a timber business and was getting Rs.8,000/-, but no evidence has been adduced in the lower court to prove the income, but the learned Tribunal took Rs.3,000/-. In view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057),**_ the appellant is entitled to get just amount as multiplicand for calculating compensation. Hence the income is taken as Rs.5,000/-. The age of the appellant was 47 years at the time of accident and the multiplier is 13. In view of _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)],**_ 25% is to be added along with the multiplicand towards future prospects. Hence the total multiplicand is Rs.6,250/-. Therefore, the total disability compensation is Rs.6,250x12x13x100/100 =9,75,000/-. The learned Tribunal awarded Rs.2,70,000/-. The balance is Rs.7,05,000/-. No further increase is necessary on the other heads. The appellant is entitled to get additional compensation of Rs.7,05,000/- (Rupees Seven Lakh Five Thousand only) with 7.5% interest and ## **M.A.C.A No.1837 of 2012** **-8-** 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 , accordingly. Sd/- **P.D.RAJAN JUDGE** bng