M.A.C.A. No. 2620 of 2009

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940 MACA.No. 2620 of 2009** **OP(MV) NO. 1488/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR** **---------------** ## **APPELLANT/PETITIONER** **---------------------** ***1. M.X. XAVIER, S/O. XAVIER, AGED 44 YEARS,RESIDING A MAPPUMCHERY HOUSE, THOMASPURAM, MARADU P.O., ERNAKULAM DISTRICT. (DIED)** ## ***ADDL. P2 TO P4 IMPLEADED** **-------------------------*ADDL. P2 JANCY XAVIER, W/O. LATE M.X. XAVIER, AGED 44 YEARS, MAPPUMCHERY HOUSE, THOMASPURAM, MARADU P.O., ERNAKULAM DISTRICT. NOW RESIDING AT MAPPUMCHERIL (H) LIVRA-104, KUSUMAGIRI PO., KAKKANAD- 682 030 *ADDL. P3 SHILPS M.X., D/O. LATE M.X. XAVIER, AGED 17 YEARS, MAPPUMCHERY HOUSE, THOMASPURM, MADARUD PO., ERNAKULAM NOW RESIDING AT MAPPUMCHERIL (H), LIVRA-104, KUSUMAGIRI PO., KAKKANAD- 682 030 (MINOR REPRESENTED BY MOTHER, NATURAL GUARDIAN AND NEST FRIEND, 1ST PETITIONER HEREIN) *ADDL.P4 KIRAN M.X., S/O. LATE M.X. XAVIER, AGED 10 YEARS, MAPPUMCHERY HOUSE, THOMASPURM, MADARUD PO., ERNAKULAM NOW RESIDING AT MAPPUMCHERIL (H), LIVRA-104, KUSUMAGIRI PO., KAKKANAD- 682 030 (MINOR REPRESENTED BY MOTHER, NATURAL GUARDIAN AND NEST FRIEND, 1ST PETITIONER HEREIN)** *** APPELLANT DIED AND ADDL. APPELLANTS 2 TO 4 ARE IMPLEADED AS LEGAL HIRES OF DECEASED APPELLANT AND ADDL. APPELLANT 2 IS APPOINTED AS GUARDIAN OF ADDL. APPELLANTS 3 AND 4 AS PER ORDER DATED 29.3.2017 IN IA.NO. 1126/17 AND IA NO. 1128/17 RESPECTIVELY** **BY ADV.SRI.K.J.KURIACHAN** **/2/** **-2-** ## **MACA.No. 2620 of 2009** ## **RESPONDENTS/RESPONDENTS:** **1. VARGHESE J. MANADAN, MANADAN HOUSE, KARINGAMTHURUTH, KONGORPILLY, PIN 683 511,** ## **2. ANEESH,** **S/O. HARIDAS, ODASSERY HOUSE, NEAR THATHAPPILLY PUTHIYAPALAM, KARINGAMTHURUTH, KONGORPILLY,** **3. THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., P.B. NO. 108, ALUVA.** **R3 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** **3.8.18** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.2620 of 2009 ---------------------------------Dated this the 12[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.1488 of 2003 of the Motor Accidents Claims Tribunal, North Paravur by the injured. Appellant sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.3,47,591/- (Rupees Three Lakh Forty Seven Thousand Five Hundred and Ninety One only) with 7% interest. Being aggrieved by that, the injured preferred this appeal. 2. The accident was not disputed by the respondents. Claimant's case is that on 23.01.2003 while he was travelling as a pillion rider in a motorcycle KL-7/Y2120 along Varapuzha-Paravur NH-17 road and when he reached at Koonammavu junction, another vehicle KRR2922 driven in a rash and negligent manner hit against the motorcycle as a result, he sustained serious injuries. Immediately he was removed to hospital. The driver and owner were ex parte. Insurer admitted the insurance of M.A.C.A. No.2620 of 2009 2 the vehicle. Claimant's evidence consist of oral testimony of PW1 and PW2 and documentary evidence of Exts.A1 to A10. Respondents evidence consists of Ext.B1. 3. Learned counsel appearing for the appellant contended that the appellant was a lawyer by profession and sustained serious injuries. Due to the injuries, he was unable to continue his profession as a lawyer and subsequently he committed suicide in the year 2016 and a meagre amount was awarded as compensation. 4. Learned counsel appearing for the insurer admitted that the claimant sustained serious injuries in the accident. 5. 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 ## M.A.C.A. No.2620 of 2009 3 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. Ext.A5 and Ext.A6 shows that lacerated injury on (R ) frontal region, abrasion with contusion on (R ) forearm, laceration on lower 3[rd] of (R ) thigh with open fracture of lower end of (Supracondylar) (R ) femur, laceration on (R ) leg, on (R ) foot, open fracture of both bones of (R ) leg and fracture of (R ) talus. Wound debridement, external fixation of (R ) femur and leg, open reduction and internal fixation of (R ) femur inter condylar fracture were done. Redebridement of the wounds and skin grafting of the raw was done on 29.01.2003. External fixation of femur and (R ) leg was ## M.A.C.A. No.2620 of 2009 4 removed and Illizarov ring fixation of (R ) femur, (R ) tibin and per-cutaneous fixation and bone grafting of (R ) talus were done. Bone transport was started on 20.02.2003, curettage of the pin tracts was done. 6. In permanent injury case, the injured is entitled to get higher amount than that in death case. 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 nonpecuniary 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 injuries cases as follows: ## M.A.C.A. No.2620 of 2009 5 “ 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. The injured sustained permanent disability at 27% which was not disputed by the insurer in the lower court. The learned Tribunal took Rs.6,000/- as his monthly income. He was bed ridden for three years and five months, but the learned Tribunal awarded ten months loss of income which is very low. It is true that after the accident, he lived for 13 years. For all these years he was suffering from the injuries sustained in the ## M.A.C.A. No.2620 of 2009 6 accident. There was shortening of leg by 6 cms. He had undergone external fixation of (R) femur and leg, open reduction and internal fixation of (R) femur inter condylar fracture were done. Redebridement of the wounds and skin grafting of the raw was done on 29.01.2003. External fixation of femur and (R) leg was removed and Illizarov ring fixation of (R) femur, (R) tibia and per-cutaneous fixation and bone grafting of (R) talus were done. Bone transport was started on 20.02.2003, curettage of the pin tracts was done and due to these sufferings, he might have committed suicide. Ext.A9 is the Disability Certificate issued by the Medical Board. Considering the oral evidence of PW1 and PW2, this Court is inclined to grant additional ten months loss of income in addition to the ten months loss of income awarded by the learned Tribunal. Hence, the appellant is entitled to get an enhanced compensation of Rs.60,000/- for loss of income. Pain and suffering additional Rs.25,000/-, The injured was aged 37 years at the time of accident. Since he committed suicide after 13 years, I take ## M.A.C.A. No.2620 of 2009 7 the multiplier as 13. He is a lawyer by profession, hence an addition of 50% increase of the income is necessary considering the Law settled by the Apex Court in **National Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)].** Then the income comes to Rs.9000/(6000+3000) and he is entitled to get an amount of Rs.3,79,080/- (9000x12x13x27%). The learned Tribunal awarded Rs.77,760/- on that head and the balance is Rs.3,01,320/-. The total enhanced compensation is Rs.3,86,320/- (Rupees Three Lakhs Eighty Six Thousand Three Hundred and Twenty only). 8. After the death of the injured, his legal representatives were impleaded as additional appellants 2 to 4. Hence, the additional appellants 2 to 4 are entitled to get an enhanced compensation of Rs.3,86,320/- (Rupees Three Lakhs Eighty Six Thousand Three Hundred and Twenty only) with 7% interest and proportionate cost in addition to Rs.3,47,591/- (Rupees Three Lakh Forty Seven Thousand Five Hundred and Ninety One only) awarded by the learned Tribunal. The ## M.A.C.A. No.2620 of 2009 8 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. It is made clear that the additional claimants 2 to 4 are entitled to get equal share and the minor's share shall be deposited in a Nationalised Bank till he attains majority. M.A.C.A. is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge