K.S. Abdul Jabbar v. Gopi; Babu; United India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940** **MACA.NO. 296 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.1260/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 30-04-2014** **--------------------** ## **APPELLANT(S)/PETITIONER :** **-----------------------** **K.S.ABDUL JABBAR, AGED 47 YEARS, S/O. SAID MUHAMMED, PULAYANTHURUTHIL HOUSE, CALAKKAL, ALUVA EAST VILLAGE, ERNAKULAM** **BY ADVS.SRI.GIGIMON ISSAC SRI.A.K.JAYAPRAKASH** ## **RESPONDENT(S)/RESPONDENTS:** **------------------------** **1. GOPI, AGED 58 YEARS, S/O.IKKORAN,CHEMMAYATH HOUSE, NEDUNGAPRA P.O., PANICHAYAM KARA, ASAMANNUR VILLAGE, PERUMBAVOOR ERNAKULAM-683545.** **2. BABU,S/O. K.A.SIVAN, KAINIKIDY HOUSE, NEDUNGAPRA P.O., PANICHAYAM KARA, ASAMANNUR VILLAGE, PERUMBAVOOR, ERNAKULAM-683545.** **3. UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, P.B. NO.42,PUTHUSSERY COMPLEX, GOVT. HOSPITAL JUNCTION, ALUVA 683 101.** **R3 BY ADV. SRI.A.R.GEORGE** **R3 BY ADV.SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.296 of 2015 ---------------------------------Dated this the 25[th] day of July, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1260 of 2007 of the Motor Accidents Claims Tribunal, Perumbavoor by the injured. Appellant sustained injuries in a motor accident on 11.05.2007 at 7.20 a.m. and the learned Tribunal awarded compensation of Rs.3,65,649/- (Rupees Three Lakh Sixty Five Thousand Six Hundred and Forty Nine only) with 8% interest and proportionate cost. Being aggrieved by that, he preferred this appeal. 2. The accident was not disputed by the respondent in the lower court. Claimant's case in the lower court was that on 11.05.2007 at 7.20 a.m., while he was riding a motorcycle through Methala-Oadakkali road and when he reached at Kottachira, a Tempo Van KL-7/P-5805 driven in a rash and negligent manner and hit against the motorcycle as a result, he sustained serious injuries. The driver and owner filed written M.A.C.A. No.296 of 2015 2 statement and contested the claim petition. The insurer admitted the insurance of the vehicle. Respondents 1 to 3 contended that the accident was due to the negligence of the appellant. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A29. Respondents did not adduce any oral evidence. The learned Tribunal awarded the following amounts as compensation. Loss of earning Rs.14,000/- (Rs.3,500x4 months), Transport to hospital Rs.1,500/-, Extra nourishment Rs.3,000/- (Rs.750x4 months), Damage to clothes etc. Rs.500/-, Attendant charges Rs.3,000/(Rs.150x20 days), Medical expenses Rs.1,31,149/-, Pain and suffering Rs.30,000/-, Loss of expectation Rs.25,000/-, Disability Rs.1,57,500/- (Rs.3,500x12x15x 25%) . The total compensation awarded is Rs.3,65,649/(Rupees Three Lakh Sixty Five Thousand Six Hundred and Forty Nine only). 3. Learned counsel contended that the appellant sustained brachial plexus injury and his right hand is fully paralysed. He was a Drafts Man and after the accident he could not do any work. The Medical M.A.C.A. No.296 of 2015 3 Board assessed his disability at 50% and he is entitled to get just amount as compensation. 4. Learned counsel appearing for the insurer contended that there is no permanent income and the claim of Rs.9,500/- is unsustainable in law. The learned Tribunal took just and reasonable income and no further enhancement is necessary. 5. Apex Court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** held that the injured is entitled to get just amount of compensation which reads as follows: - (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning ## M.A.C.A. No.296 of 2015 4 capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 6. In permanent injury case, the injured is entitled to get amount of compensation than that in death case. The compensation 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 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 ## M.A.C.A. No.296 of 2015 5 ## 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.” 7. Ext.A6 is the wound certificate issued from Medical College Hospital, Kolencherry. Exts.A7 and A8 are also issued from M.O.S.C. Medical College Hospital, Kolencherry which shows that he sustained serious injuries in the above accident. Ext.A9 is the discharge summary issued from Medical Trust Hospital, Cochin. Ext.A10 is the Treatment Certificate issued from Medical M.A.C.A. No.296 of 2015 6 Trust Hospital, Cochin. He had also undergone Ayurvedic Treatment at CVN, Kalari at Champakkara. Ext.A13 is the National Trade Certificate which shows that he got a certificate in Drafts Man (Civil) from National Counsel for Vocational Training Centre. Ext.A14 and Ext. A15 are the Certificates issued by the Executive Engineer, Central Public Works Department, Calicut Central division, Ext.A16 is the Building Supervisor Licence issued by the Secretary of Aluva Municipality, Ext.A17 is the Proceedings of the Project Co-ordinator, Jnnurm Project Circle, Kerala Water Authority, Ext.A18 is the Proceedings of the Executive Engineer of Jilla Panchayath, Ernakulam, Ext.A19 is the Certificate of Registration as 'Supervisor B' issued by the Department of Urban an Affairs, Ext.A20 is the Employment cum Salary Certificate issued by the proprietor of C.R. Engineers and Contractors, Binanipuram and Ext.A21 is the Employment certificate issued by M/s Malaya Rub Tech Industries, Kaloor. These documents show that the injured had a Good certificate record in Drafts Man (Civil). He is also holding a valid passport, Exts.A22 and M.A.C.A. No.296 of 2015 7 A23 corroborate his claim. If that be the position, he is a qualified Draftsman (Civil) and the income of Rs.9,500/stated by him is reasonable in view of **Dixit Kumar and Ors.** Vs. **Om Prskash Goel 2017 ACJ 2057** . 8. The assessment of compensation in permanent disability cases 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 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 M.A.C.A. No.296 of 2015 8 in that case. 9. The injured was aged 40 years at the time of accident therefore the multiplier is 15. In view of **National Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)]** 40% (9,500x40%) of the income has to be added towards future prospects and the monthly income is Rs.13,300/-. The Medical Board assessed the disability at 50%, but the learned Tribunal without any fresh assessment reduced the disability to 25% which is illegal in view of the decision in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** and the disability is 50%. Hence, the appellant is entitled to get an amount of Rs.11,97,000/- (13,300x12x15x50%). The learned Tribunal awarded Rs.1,57,500/- on that head and the balance is Rs.10,39,500/-. Along with that, an amount of Rs.70,000/- is awarded towards Pain and sufferings, Rs.25,000/- towards Loss of amenities, Rs.24,000/towards loss of earnings and Rs.25,000/- for Future Medical Treatment. The total enhanced compensation is Rs.11,83,500/- (Rupees Eleven Lakh Eighty Three M.A.C.A. No.296 of 2015 9 Thousand Five Hundred only). Accordingly, the appellant is entitled to get an enhanced compensation of Rs.11,83,500/- (Rupees Eleven Lakh Eighty Three Thousand Five Hundred only) with 9% interest and proportionate cost, in addition to Rs.3,65,649/- (Rupees Three Lakh Sixty Five Thousand Six Hundred and Forty Nine 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. M.A.C.A is disposed of as above. NS Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge