MACA Nos. 1757 of 2015 and 1298 of 2015, Sali v. Branch Manager, The Reliance General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940** **MACA.NO. 1757 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.59/2009 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-III, ALAPPUZHA DATED 28-02-2015** **----------------------------** **APPELLANT(S)/PETITIONER :** **-----------------------** **SALI, S/O.ABDUL KHADAR, THAIPARAMBIL KAMBIKAKAM, POWER HOUSE WARD, ALAPPUZHA.** **BY ADVS.SRI.K.ABDUL JAWAD SRI.MATHEW J KUZHALANADAN SMT.V.K.ANJU SMT.MINISHA K.DAS** **RESPONDENT(S)/3RD RESPONDENT:** **---------------------------** **THE BRANCH MANAGER, THE RELIANCE GENERAL INSURANCE CO.LTD., IIIRD FLOOR, 5 LEVEL TRANS TOWERS, VAZHUTHAKADU, THIRUVANANTHAPURAM-695014.** **R1 BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2018 ALONG WITH M.A.C.A. NO.1298 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** **P.D. RAJAN, J. -----------------------M.A.C.A. Nos.1757 & 1298 of 2015 ---------------------------------Dated this the 2[nd] day of July, 2018** ## **J U D G M E N T** These appeals are preferred against the award in O.P.(M.V.) Nos.59 of 2009 of the Additional Motor Accidents Claims Tribunal-III, Alappuzha. On 14.01.2008 at 8.00 p.m., the appellant in M.A.C.A. No.1757 of 2015 was riding a bicycle and when he reached at Kommadi junction a car KL-01/AM-3527 driven in a rash and negligent manner knocked down him as a result, he sustained serious injuries. Immediately he was removed to hospital. The injured did not adduce any oral evidence but his documents were marked as Exts.A1 to A23. The learned Tribunal awarded Rs.13,89,927/- (Rupees Thirteen Lakhs Eighty Nine Thousand Nine Hundred and Twenty Seven only) with interest and cost as compensation. Being aggrieved by that, injured preferred M.A.C.A No.1757 of 2015 and the insurer preferred M.A.C.A No.1298 of 2015. ## 2. Learned counsel appearing for the appellant M.A.C.A. Nos.1757 & 1298 of 2015 2 in M.A.C.A No.1757 of 2015 contended that the injured had undergone treatment for 200 days conservatively in the hospital for which no amount was awarded for loss of income. He is a head load worker and assessed 80% permanent disability by the Medical Board. Now he is fully disabled and unable to do any work as a head load worker because of the injuries and no amount was awarded towards Loss of Amenities. 3. Learned counsel appearing for the insurer, who is the appellant in M.A.C.A No.1298 of 2015 contended that the injured claimed only Rs.6,000/- as his monthly income in his claim petition, but while awarding compensation Rs.7,000/- was taken by the Tribunal, which is on a higher side. Hence, the disability compensation has to be reduced in view of the income claimed in the petition. 4. In permanent injury case, the injured is entitled to get higher income than that in death case. The damages are to be assessed separately as pecuniary and special damages. The object is to compensate injury M.A.C.A. Nos.1757 & 1298 of 2015 3 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: “ 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 M.A.C.A. Nos.1757 & 1298 of 2015 4 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.” 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 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 M.A.C.A. Nos.1757 & 1298 of 2015 5 sustained to the victim and also on the nature of evidence in that case. 6. 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 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 M.A.C.A. Nos.1757 & 1298 of 2015 6 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/respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. ## 7. For calculating compensation in disability cases the guidelines issued in **Pranay Sethi (Supra)** is relevant. The injury reduced the earning capacity at the rate of 80%. There was direction to assess the disability after two years. Ext.X1 is the disability certificate issued by the Medical Board after two years which shows 80% disability. Even though, the appellant produced Ext.A20 M.A.C.A. Nos.1757 & 1298 of 2015 7 to show that he was getting Rs.7,000/- per month, that was not proved before the Trial Court. Hence, Rs.6,000/is taken as his monthly income. Since the injured was getting fixed income, in view of **Pranay Sethi (Supra)** additional 40% (6000x40%=2400) has to be added along with the income and then the income comes to Rs.8,400/(6000+2400). Appellant is aged 34 years at the time of accident and the multiplier is 16. Accordingly, the appellant is entitled to get an amount of Rs.12,90,240/(8400x12x16x80%) towards permanent disability. The learned Tribunal awarded Rs.10,75,200/- on that head. The balance is Rs.2,15,040/-. The learned Tribunal awarded Rs.70,000/- towards loss of earning by taking Rs.7,000/- as his monthly income but he claimed monthly income or Rs.6,000/-. In the circumstance, an amount of Rs.10,000/- has to be reduced. No amount was awarded towards Loss of Amenities, considering the nature of injury an amount of Rs.1,00,000/- is awarded for Loss of Amenities and an additional amount of Rs.20,000/- is awarded for Bystander expenses. The total enhanced M.A.C.A. Nos.1757 & 1298 of 2015 8 compensation is Rs.3,25,040/-. Accordingly, the appellant in M.A.C.A. No.1757 of 2015 is entitled to get an enhanced compensation of Rs.3,25,040/- (Rupees Three Lakh Twenty Five Thousand and Forty only) with 7.5% interest and proportionate cost as compensation in addition to Rs.13,89,927/- (Rupees Thirteen Lakhs Eighty Nine Thousand Nine Hundred and Twenty Seven only) awarded by the learned Tribunal. 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. Accordingly M.A.C.A Nos.1757 & 1298 of 2015 are partly allowed and disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge