MACA No. 221 of 2015 & MACA No. 598 of 2015 (National Insurance Company Ltd. v. Alan Thomas and Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** **MACA.NO. 221 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.860/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA DATED 14-07-2014** ## **APPELLANT/3RD RESPONDENT IN O.P(M.V.) NO.860/2010 :** **THE NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE,KOTTAYAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** |**RESPONDENTS/CLAIMANT AND RESPONDENTS 1 & 2**|**RESPONDENTS/CLAIMANT AND RESPONDENTS 1 & 2**| |---|---| |**IN O.P.(M.V.)**|**NO.860/2010**<br>**:**| |**1**|**ALAN THOMAS,S/O.THOMAS,**| ||**KARIAMTHADATHIL HOUSE, PRAVALTHANAM KARA,**| ||**BHARANANGANAM VILLAGE-686578.**| |**2**|**SIMSON T.OLICKAL, S/O.RAJU THOMAS,**| ||**OLICKAL HOUSE PRAVITHANAM, PALA-686575.**| |**3**|**JIMMY GEORGE,**| ||**34-O,REGAL SHIPRA SUNCITY, INDIAPURAM,**| ||**GHAZIABAD, UTTARPRADESH-201001.**| ||**BY ADVS. SRI.CYRIAC KURIAN**| ||**SRI.C.S.MANILAL**| ||**SRI.S.NIDHEESH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2019, ALONG WITH MACA NO.598/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 221 OF 2015 & MACA.NO. 598 OF 2015 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** **MACA.NO. 598 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.)NO.860/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA DATED 14-07-2014** ## **APPELLANT/PETITIONER :** **ALAN THOMAS, S/O.THOMAS, KARIAMTHADATHIL HOUSE, PRAVAITHANAM KARA, BHARANANGANAM VILLAGE.** **BY ADVS. SRI.C.S.MANILAL SRI.CYRIAC KURIAN SRI.S.NIDHEESH** ## **RESPONDENTS/RESPONDENTS :** **1 SIMSON T. OLLCKAL, S/O.RAJU THOMAS, OLLCKAL HOUSE, PRAVITHANAM, PALA, 686651.** - **2 JIMMY GEORGE, 34-0 REGAL SHIPRA SUNCITY, INDIAPURAM, GHAZIABAD, UTTARPRADESH-201001.** **3 THE NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM DISTRICT-686001.** **BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2019, ALONG WITH MACA NO.221/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 221 OF 2015 & MACA.NO. 598 OF 2015** **3** ## **JUDGMENT** These appeals are preferred against the award in O.P. (M.V.) No.860 of 2010 of the Motor Accidents Claims Tribunal, Pala. Appellant in M.A.C.A. No.598 of 2015 sustained injuries in a motor accident near Pizhaku bridge in Ramapuram Village while riding an autorickshaw and the Motor Accidents Claims Tribunal awarded compensation of Rs.33,83,800/- (Rupees Thirty Three Lakh Eighty Three Thousand and Eight Hundred only) with 7.5% interest and cost. Being aggrieved by that, the injured preferred M.A.C.A. No.598 of 2015 and the insurer preferred M.A.C.A. No.221 of 2015. 2. It would be relevant and useful to mention the facts leading to the accident. On 08.05.2010 at 9.30 p.m., the appellant in M.A.C.A. No.598 of 2015 was driving an autorickshaw from Manathoor to Ullanadu, when he reached near Pizhaku bridge, another motorcycle DL-35/AX-1348 driven in a rash and negligent manner hit against the autorickshaw as a result, the claimant, driver **MACA.NO. 221 OF 2015 & MACA.NO. 598 OF 2015 4** of the auto rickshaw was thrown away and sustained serious injuries. Immediately he was removed to hospital. The driver and owner of the offending vehicle were ex parte in the lower court. The insurer admitted the insurance of the vehicle. 3. Learned counsel Adv. Lal George appearing for the insurer in M.A.C.A No.221 of 2015 contended that excess amount was awarded towards loss of amenities and future treatment expenses. Interest was also paid towards loss of amenities and future treatment expenses, which is illegal. Ext.X1, Disability Certificate shows that the injured sustained 70% permanent disability. Hence the above amount awarded towards future treatment expenses and loss of amenities have to be reduced. 4. Appellant in M.A.C.A No.598 of 2015 contended that he sustained serious injuries in the above accident. The Medical Board certified 70% permanent disability. Now he is bed ridden and unable to do any work. His movement of body was restricted and is suffering from severe pain. He had undergone two major surgeries, hence the amount awarded towards pain and sufferings and loss **MACA.NO. 221 OF 2015 & MACA.NO. 598 OF 2015 5** of amenities are very low. Without the help of a bystander he cannot move. For that, he has to pay huge amount towards bystanders for his day to day support. Hence, the amount awarded towards bystander expenses for his future has to be increased. He claimed Rs.10,000/- as his monthly income but the Motor Accidents Claims Tribunal took Rs.6,000/- for awarding the disability compensation. Even though, the Medical Board awarded 70% disability, he has 100% permanent disability. 5. 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: “ 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 **MACA.NO. 221 OF 2015 &** **6** ## **MACA.NO. 598 OF 2015** 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 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”. ## 6. The petitioner had sustained serious injuries. ## Ext.A7 is the case summary and discharge card issued to **MACA.NO. 221 OF 2015 & MACA.NO. 598 OF 2015 7** the petitioner from Indo American Hospital, Vaikom. He was admitted to the hospital on 09.05.2010 and discharged on 12.07.2010. The injuries noted in Ext.A7 are: C7 sub luxation over T1, paraplegia, left shoulder dislocation. The petitioner had weakness of both lower limbs, loss of sensation nipples downwards and pain left shoulder, bilateral lower limb power 0/5, absent sensation below T3. MRI shows subluxation of C7 over T1 and contusion at C6 level paravertebral tissue contusion. X-ray of the left shoulder showed shoulder dislocation. C7-T1 discectomy and fusion with bone graft and plating done under general anaesthesia. Condition at discharge noted a febrile, bilateral upper limb power 4/5, bilateral lower limb 1/5, operative wound healthy and healing. He was again admitted on 01.06.2011 and discharged on 27.06.2011. The petitioner was in the hospital for a total period of 90 days. 7. In 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 **MACA.NO. 221 OF 2015 & MACA.NO. 598 OF 2015 8** 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. The injured was aged 28 years at the time of accident and claimed Rs.10,000/- as his monthly income. There was no dispute with regard to the accident and the injuries. In the lower court, PW1 deposed that the accident was due to the rash and negligent driving of the motorcycle by its rider. The Police charge sheeted the driver and filed Ext.A6 final report before the Court. RW1 rider contended that the accident was not due to his negligence. The learned Tribunal found that the accident was due to the rash and negligent driving of the motorcycle. ## 8. 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), **MACA.NO. 221 OF 2015 &** **MACA.NO. 598 OF 2015** **9** 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 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. 9. The assessment 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 **MACA.NO. 221 OF 2015 & MACA.NO. 598 OF 2015 10** 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. 10. PW1 stated that he sustained permanent disability. Ext.X1 disability certificate shows 70% permanent disability. Now he is fully bed ridden and no chance for any improvement. He had undergone 2 surgeries after the accident. If that be the position, as a driver, he cannot drive his vehicle and is having 100% disability in view of **United India Insurance Co. Ltd.** v. **Suresh [(2008) 4 KLT 552 (SC)]** . Therefore, he is entitled to get compensation for 100% disability. Apex Court in **Dixit Kumar and Ors.** Vs. **Om Prakash Goel** **[2017 ACJ 2057]** held that in the absence of any contra evidence, it is difficult to reduce the income of the **MACA.NO. 221 OF 2015 & MACA.NO. 598 OF 2015 11** claimant. PW1 deposed that he was getting Rs.10,000/per month. The learned Tribunal took only Rs.6,000/- in the absence of any contra evidence. In view of **Dixit Kumar (Supra),** it is difficult to reduce the income of the claimant. Hence, the above reduction is set aside and he is entitled to get a minimum income of Rs.10,000/-. In view of **National Insurance Company V. Pranay Sethi** **[2017 (4) KLT 622 (SC)]** , 40% is added towards future prospectus, then the total income will be Rs.14,000/-. The claimant was aged 28 years at the time of accident and the multiplier is 17. Hence, he is entitled to get Rs.28,56,000/- (14,000x12x17x100%) for permanent disability. The learned Tribunal awarded Rs.8,56,800/- on that head and the balance is Rs.19,99,200/-. Even though, the appellant injured in M.A.C.A. No.221 of 2015 contended that excess amount was awarded towards loss of amenities, this Court cannot agree with the above arguments. The evidence shows that meagre amount was awarded towards pain and sufferings. He is still suffering from severe pain due to the injuries. Therefore an additional amount of Rs.45,000/- is awarded for pain and **MACA.NO. 221 OF 2015 & MACA.NO. 598 OF 2015 12** sufferings. The Tribunal awarded Rs.8,50,000/- towards loss of amenities hence no further increase is necessary. Just amount was awarded towards bystander expenses and future medical expenses, but the interest awarded by the Tribunal towards future medical expenses and bystander expenses (4,00,000+3,00,000) are hereby set aside. Accordingly, the appellant injured in M.A.C.A. No.598 of 2015 is entitled to get an enhanced compensation of Rs.20,44,200/- (Rupees Twenty Lakh Forty Four Thousand Two Hundred only) with 9% interest and proportionate cost in addition to the award amount. 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. No. 221 of 2015 & M.A.C.A. No. 598 of 2015 are partly allowed as above. ## Sd/- ## **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge NS