M.A.C.A. No.1980 of 2016 & Cross Objection No.115 of 2016

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 5TH DAY OF JUNE 2018 / 15TH JYAISHTA, 1940** **MACA.NO. 1980 OF 2016** **AGAINST THE AWARD IN O.P.(M.V.) NO.1638/2011 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 31-10-2015 ------------------------** **APPELLANT(S)/2ND RESPONDENT :** **----------------------------** **THE NEW INDIA ASSURANCE COMPANY LIMITED, PERUNDURAI, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT(S)/PETITIONER :** **-------------------------** **KARIM KHAN A. S/O. ABDULLA KHAN, DRIVER, 4/102, MEKKACHI VALAPPIL PATTANI HOUSE, KALATHODE, OLLUKKARA P.O., THRISSUR DISTRICT, PIN-680685.** **R1 BY ADV. SRI.P.V.CHANDRA MOHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. No.1980 of 2016 & Cross Objection No.115 of 2016 ---------------------------------Dated this the 5[th ] day of June, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1638 of 2011 of the Motor Accidents Claims Tribunal, Thrissur by the insurer. On 19.07.2011 the injured Karim Khan was driving a car KL-09/R-2743, another vehicle TN-67/Y-2419 driven in a rash and negligent manner, hit against the car as a result, the claimant sustained serious injuries. Immediately he was removed to hospital and his right hand was amputated. The learned Tribunal awarded Rs.32,77,642/- (Rupees Thirty Two Lakh Seventy Seven Thousand Six Hundred and Forty Two only) as compensation. Being aggrieved by that, the insurer preferred this appeal. 2. In the lower court, the appellant did not dispute the accident. 1[st] respondent was ex parte and did not file any written statement. Claimant also did not adduce any oral evidence, but his documents were M.A.C.A. No.1980 of 2016 & 2 Cross Objection No.115 of 2016 marked as Ext.A1 to A12. Respondent's document was marked as Ext.B1. 3. Learned counsel appearing for the appellant contended that there is duplication in the amounts awarded towards compensation for loss of earning power and also for permanent disability. The amounts awarded for disfigurement and loss of amenities and enjoyments in life are also duplication. It is also contended that the amount awarded for artificial limb is very high. 4. Learned counsel appearing for the injured/claimant filed Cross Objection No.115 of 2016 and contended that the income taken by the tribunal was very low. He submitted that Ext.A8 quotation was issued from Endolite India Limited for purchasing of artificial limb which shows the actual expense for purchasing the same, but he conceded that there is duplication of the amounts awarded towards permanent disability and loss of earning capacity. Moreover, the injured was a driving instructor in various driving schools, the amount awarded M.A.C.A. No.1980 of 2016 & 3 Cross Objection No.115 of 2016 towards loss of amenities is very low. 5. In permanent injury case, the injured is entitled to get higher amount as compensation than 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 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 injuries cases as follows: “ We do not intend to review in detail state of authorities in relation to assessment of all damages for ## M.A.C.A. No.1980 of 2016 & 4 Cross Objection No.115 of 2016 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.” 6. 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 M.A.C.A. No.1980 of 2016 & 5 Cross Objection No.115 of 2016 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. 7. Apex Court in **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)]** held as follows: 61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the M.A.C.A. No.1980 of 2016 & 6 Cross Objection No.115 of 2016 decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- M.A.C.A. No.1980 of 2016 & 7 Cross Objection No.115 of 2016 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 8. It is true that the learned Tribunal awarded Rs.11,23,200/- for Permanent Disability, Rs.4,00,000/- for Loss of Earning Power, Rs.1,50,000/- for Disfigurement and Rs.40,000/- for Loss of Amenities and enjoyments in life. There is duplication of compensation, hence modification is necessary. The injured was a driving instructor and was getting Rs.9,000/- per month. There was no dispute with regard to the income of the appellant, hence in view of **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)]** 25% of the income has to be added considering the future prospects and the income comes to Rs.11,250/(9,000+2,250). There is no dispute with regard to the multiplier also. The injured sustained 80% disability. If that be the position, the total dependancy compensation will be Rs.14,04,000/- (11250x12x13x80%). The total amount awarded for compensation for permanent disability and loss of earning power is Rs.15,23,200/- M.A.C.A. No.1980 of 2016 & 8 Cross Objection No.115 of 2016 (11,23,200+4,00,000). Hence, excess amount of Rs.1,19,200/- has to be deducted from the total compensation. There is also duplication towards compensation for Disfigurement and for Loss of Amenities and enjoyments in life. Total sum of Rs.1,90,000/- (1,50,000+40,000) of which an amount of Rs.40,000/- has to be deducted in order to avoid duplication. Therefore Rs.1,59,200/- (1,19,200+40,000) has to be deducted from the total compensation. In view of Ext.A8 quotation for purchasing artificial limb further deduction is not necessary. Therefore, the appellant is entitled to get an amount of Rs.31,18,442/- (32,77,6421,59,200) (Rupees Thirty One Lakh Eighteen Thousand Four Hundred and Forty Two only) with 9% interest with proportionate cost as compensation. The insurer is directed to satisfy the modified award of Rs.31,18,442/(Rupees Thirty One Lakh Eighteen Thousand Four Hundred and Forty Two only) with 9% interest with proportionate cost within a period of thirty days from the M.A.C.A. No.1980 of 2016 & 9 Cross Objection No.115 of 2016 date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. Both the M.A.C.A and Cross Objection are disposed of as above. NS Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge