MACA No. 2477 of 2014 & MACA No. 45 of 2015, National Insurance Co. Ltd. v. Shaji M.M. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940** ## **MACA.NO. 2477 OF 2014** **AGAINST THE AWARD IN O.P.(M.V.) NO.822/2010 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 10-03-2014** **APPELLANT/3RD RESPONDENT IN THE O.P.:** **NATIONAL INSURANCE CO.LTD.** **REP.BY THE MANAGER, KOCHI REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDINGS, PADMA JUNCTION, M.G.ROAD, KOCHI-35.** **BY ADV. SRI.A.R.GEORGE** **RESPONDENTS/CLAIMANT & RESPONDENTS 1 & 2 IN THE O.P.:** |**1**|**SHAJI M.M., S/O. MOHAMMAD,**| |---|---| ||**MADATHIPARAMBIL HOUSE, NEAR VENNALA SCHOOL,**| ||**VENNALA KARAYIL, EDAPPALLY SOUTH VILLAGE,**| ||**KOCHI-682018.**| |**2**|**BABU T.I., S/O.ISSAC T.V., THENGADAYIL HOUSE,**| ||**ERATHWAPUZHA KARAYIL, PAMPAVALI NORTH P.O.,**| ||**KANJIRAPPALLY, ERUMELI SOUTH VILLAGE,**| ||**KOTTAYAM, PIN-686510.**| |**3**|**ANU NAINAN KOSHY, PROPRIETOR,**| ||**PROMPT CARRIERS, 31/870, GROUND FLOOR,**| ||**OLASSA VALLEY, THAMMANAM ROAD,**| ||**PONNURUNNI, VYTTILA, ERNAKULAM-682019.**| **BY ADVS. SRI.K.JANARDHANAN SRI.P.P.RAJESH SMT.P.C.JEEVA SRI.K.J.MANU RAJ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2019, ALONG WITH M.A.C.A. NO.45/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940** **MACA.NO. 45 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.822/2010 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 10-03-2014** ## **APPELLANT/PETITIONER :** **SHAJI M.M., S/O. MOHAMMAD, MADATHIPARAMBIL HOUSE, NEAR VENNALA SCHOOL, VENNALA KARAYIL, EDAPPALLY SOUTH VILLAGE, KOCHI-28.** **BY ADVS. SRI.K.JANARDHANAN SMT.P.C.JEEVA SRI.K.J.MANU RAJ** ## **RESPONDENT/3RD RESPONDENT :** **NATIONAL INSURANCE CO. LTD., REP.BY THE MANAGER, KOCHI REGIONAL OFFICE, 2[ND] FLOOR, OMANA BUILDINGS, PADMA JUNCTION, M.G.ROAD, KOCHI-35.** **BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2019, ALONG WITH M.A.C.A. NO.2477/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015 3** ## **JUDGMENT** These appeals are preferred against the award in O.P.(M.V.) No.822 of 2010 of the Motor Accidents Claims Tribunal, Ernakulam. M.A.C.A. No.2477 of 2014 was preferred by the insurer of KL-7/BH-2747 and M.A.C.A No.45 of 2015 was preferred by the injured. Appellant in M.A.C.A No.45 of 2015 sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.5,30,870/- (Rupees Five Lakh Thirty Thousand Eight Hundred and Seventy only). Being aggrieved by that, both the insurer and the claimant preferred these appeals. 2. It is better to consider the facts given rise to the accident. On 09.01.2010 at 11.15 a.m., the claimant was riding a motor cycle along Thammanam-Palarivattom public road, when he reached at Samskara Junction, an ACE Goods Carrier bearing Registration No.KL-07/BH2747 driven in a rash and negligent manner by its driver hit on the back side of his motor cycle, as a result he fell down and sustained serious injuries. Immediately he was removed to Medical Trust Hospital, Ernakulam. The **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015 4** driver and owner of the offending vehicle filed written statement and disputed the accident. They contended that the accident was due to the negligence of the petitioner while overtaking the ACE goods carriage. The insurer admitted the insurance of the vehicle, but contended that the driver was not holding a valid driving licence at the time of accident. 3. The evidence consist of both oral and documentary evidence. The petitioners evidence consist of oral testimony of PW1 and documentary evidence of Ext.A1 to A25. Respondents evidence consists of oral testimony of RW1 and Exts.B1 to B4. The disability certificate issued from the District Medical Board was marked as Ext.C1 and the disability certificate issued from the State Medical Board was marked as Ext.C2. 4. Appellant in M.A.C.A No.45 of 2015 contended that he is a Contractor by profession, getting Rs.20,000/per month and is an income tax payee. The learned Tribunal did not consider the income and took only a notional income of Rs.4,000/- for awarding disability compensation. The State Medical Board assessed 21% **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015 5** disability and he is entitled to get a higher amount as compensation. 5. Learned counsel appearing for the appellant in M.A.C.A No.2477 of 2014 contended that the accident was due to the negligence of the injured himself which was stated by RW1 before the Tribunal. The final report submitted by the investigating officer is not a conclusive proof to prove the rash and negligent driving of the driver of the offending vehicle. Moreover, the District Medical Board certified only 9% disability, but the state Medical Board awarded 21% without giving any reasoning, hence the escalation in the range of disability has to be ignored and is not admissible. As a contractor, there is no loss of earning power and the amount awarded towards loss of earning power has to be set aside. 6. 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 **MACA.NO. 2477 OF 2014 &** ## **M.A.C.A. NO.45/2015** 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 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 **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015 7** 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”. In personal 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 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. 7. 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. **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015** 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. 8. The injured sustained comminuted fracture of left proximal tibia and other injuries which is noted in Ext.A2. It can be seen that most of the injuries are sustained to left leg. PW1 has produced Ext.A12 discharge summary, which shows that he was admitted there on 09.01.2010 and discharged on 19.03.2010. He has sustained schatzker's type VI fracture left proximal tibia with compartment syndrome. Ext.A12 also shows that external fixation and ilizarov ring fixation were done to his left leg. Ext.A13 is another discharge summary issued from the **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015 9** same hospital, which shows that he was again admitted on 14.04.2010 due to delayed union of proximal tibia left side with illizarov ring in situ and discharged on 22.04.2010. Ext.A14 is another discharge summary issued from the same hospital, which shows that he was again admitted there on 24.06.2010 due to pin tract infection with ring sequestrum left tibia and discharged on 01.07.2010. Ext.A9 series are the photographs. PW1 has produced Ext.A15 series (133 Nos.) medical bills, which show that he had spent an amount of Rs.2,72,301.55 towards his treatment. On a perusal of Ext.A15 series, Sl. Nos.68 and 71 are the bills for return of medicines. 9. It is an admitted fact that the appellant in M.A.C.A. No.45 of 2015 was riding his motorcycle. To prove the rash and negligent driving, the rider of the motorcycle was examined as PW1. His evidence shows that the accident was due to the rash and negligent driving of KL-07/BH-2747. Ext.A1 is the FIR and Ext.A3 is the Final Report. The place of occurrence was specifically mentioned in Ext.A4 Scene Mahazar. The Motor Vehicle Inspector inspected both vehicles and issued Exts.A5 and **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015** A6 reports. After conducting a detailed enquiry about the accident, Kochi City Traffic Police prepared Ext.A3 Final Report. But RW1 who was the driver of the offending vehicle deposed that there was no rashness and negligence from his side and the accident was due to the negligence of the claimant himself. He admitted that he was holding a valid driving licence and Ext.B1 is the copy of the driving licence. But in his proof affidavit, it is stated that he stopped the vehicle at the place of occurrence and while taking deviation to a housing colony, he stopped the vehicle and the rider of the motorcycle came there through the left side and it hit on his vehicle, thereby the accident occurred. RW1, in his evidence stated that at the time of accident a bus came there, but, through Pipe Line road, heavy vehicles are prohibited by the Kochi Corporation which shows that he is lying before the Court and the evidence of RW1 is only to be rejected. Therefore, the finding with regard to the rash and negligent driving is confirmed. Even though, the appellant in M.A.C.A No.2477 of 2014 contended that the driver was holding a badge for driving an Ace, in view of **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015 11** the decision of the Apex Court in **Mukund Dewangan** v. ## **Oriental Insurance Company Limited [2017 (4) KHC** **648]** , the above contention is unsustainable. Ext.B1 shows that he was holding a valid driving licence. Therefore, the insurer of the motor vehicle (Ace) is liable to pay compensation. 10. It is the case of the appellant in M.A.C.A. No.45 of 2015 that he is a Contractor and was getting Rs.20,000/- per month. Exts.A16, A17 and A18 are the acknowledgment issued from the Income Tax department and Exts.A19 and A20 are the IT return verification form. He was also doing other business along with contract work and was getting more income, that is clear from the IT statements. Exts.A21 to A25 also show that he is getting other income from different sources. Therefore, the disability might have reduced his income. The insurer contended that the District Medical Board assessed 9% disability and the State Medical Board assessed 21% disability without any reasoning. No objection was filed before the Tribunal with regard to the finding of the State Medical Board. In the absence of such objection, the ## **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015 12** dispute with regard to Ext.C2 disability certificate is unsustainable. The learned Tribunal relied the disability assessed by the State Medical Board that is, 21%. For calculating the compensation, I fix his income as Rs.10,000/- . The multiplier is 13 in view of the decision in **Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104)** . Hence the appellant is entitled to get an amount of Rs.3,27,600/- (10,000x12x13x21%) for permanent disability. The Tribunal awarded Rs.1,41,120/on that head and the balance is Rs.1,86,480/-. Loss of income for fifteen months Rs.1,50,000/- (10,000x15). The Tribunal awarded Rs.60,000/- on that head and the balance is Rs.90,000/-. In addition to that, an additional amount of Rs.25,000/- is awarded towards Loss of amenities, an additional amount of Rs.20,000/- is awarded for Future Medical treatment, an additional amount of Rs.3,000/- is awarded for Extra nourishment and an additional amount of Rs.15,000/- is awarded for Pain and sufferings. The total enhanced compensation is Rs.3,39,480/- (Rupees Three Lakh Thirty Nine Thousand Four Hundred and Eighty only). Accordingly, the **MACA.NO. 2477 OF 2014 &** **M.A.C.A. NO.45/2015 13** appellant in M.A.C.A. No.45 of 2015 is entitled to get an enhanced compensation of Rs.3,39,480/- (Rupees Three Lakh Thirty Nine Thousand Four Hundred and Eighty only) with 9% interest and proportionate cost in addition to the award amount. It is made clear that, the appellant/injured is not entitled to get any interest for the delay period in filing the appeal and for future medical treatment. Hence M.A.C.A No.45 of 2015 is partly allowed. There is no merit in M.A.C.A No.2477 of 2014 and it is dismissed accordingly. ## Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge