M.A.C.A Nos. 3210 of 2014 & 1725 of 2015

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940** **MACA.No. 3210 of 2014** **O.P(MV)NO. 333/2010 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA** **-----------** ## **APPELLANT(S)/PETITIONER :** **MOHANAN, S/O.KRISHNAN, VELAPARAMBIL HOUSE, KONATHUKUNNU PALAPRAKUNNU DESOM, THEKKUMKARA VILLAGE, THRISSUR DISTRICT.** **BY ADV.SRI.V.BINOY RAM** ## **RESPONDENT(S)/RESPONDENTS :** ## **1. V.V VARGHESE,** **VATTAPARAMBIL HOUSE, KUTTILAKKARA, PIRAROOR P.O, KALADY, ERNAKULAM DISTRICT, PIN 683 574.** ## **2. RAJAPPAN,** **S/O.PRABHAKARAN NAIR, MANAMEL HOUSE, POTTAPADAM DESOM, P.O KONATHUKUNNU, PIN 680 123.** ## **3. THE MANAGER,** **ORIENTAL INSURANCE COMPANY LTD., K.V.VARKEY MEMORIAL COMPLEX, NEAR K.S.R.T.C BUS STAND, ANGAMALY, PIN 683 572.** **R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE ADV. SRI.P.JACOB MATHEW** **ADV. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2018, ALONG WITH MACA NO.1725 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **25.07.2018** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A Nos.3210 of 2014 & 1725 of 2015 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 19[th] day of June, 2018 ## **JUDGMENT** These appeals are preferred against the award in OP(MV) No.333/2010 of the Motor Accidents Claims Tribunal, Irinjalakuda. The injured preferred M.A.C.A No.3210/2014 and the driver and owner of the vehicle preferred M.A.C.A No.1725/2015. One Mohanan, who is the claimant in OP(MV) No.333/2010 sustained serious injuries in a motor accident on 03.02.2010 and the learned Tribunal awarded Rs.70,930/- with 7.5% interest and cost and the learned Tribunal directed the insurer to satisfy the award and reimburse the amount from the driver and owner of the vehicle, being aggrieved by that, they preferred M.A.C.A No.1725/2015 and the injured preferred M.A.C.A No.3210/2014. 2. The claimant's case in the lower court was that while he was walking through the side of the Palaprakunnu - Ambedkar public road, on 03.02.2010 a goods autorickshaw bearing registration No.KL-7/AR 7637 ## **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **-2-** driven in a rash and negligent manner knocked down the injured, as a result, he sustained serious injuries. The driver and owner of vehicle were set ex-parte. The owner and insurer contested the case by filing a written statement. The second respondent disputed the rash and negligent driving. The insurer admitted the insurance of the vehicle, but contended that the driver was not holding valid driving licence. The claimant examined PW1 and PW2 as witnesses and marked Exts.A1 to A14 as his documentary evidence. A copy of the policy was marked as Ext.B1. 3. The learned counsel appearing for the appellant in M.A.C.A No.3210/2014 contended that the injured sustained serious injuries and the Doctor assessed the disability at the rate of 30%, but the learned Tribunal reduced the disability to 8% without any reason. The injured is a coolie and was getting Rs.5,000/- per month. But it was reduced to Rs.3,500/-. Hence, he is entitled to get just amount as compensation. ## **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **==> picture [18 x 9] intentionally omitted <==** 4. In injury cases 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 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 ## **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **-4-** 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 compensationis taking an appropriate multiplier of an appropriate multiplicand.” 5. 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 scope for awarding ## **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **-5-** 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. 6. The injured is entitled to get just amount as compensation. Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ held as follows: _11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold and enquiry into the claim' for determining the ' just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases,_ **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **-6-** _the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by Americal Academy of Orthopedic Surgeons or its India equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Worksmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage._ _12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who_ **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **-7-** _did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. but where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability._ 7. In the absence of reference to another Medical Board, the reduction of the disability from 30% to 8% is unsustainable in law. The best option for the Tribunal is to refer the claimant to another Medical Board, if there is **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **-8-** any doubt with regard to Ext.A14 disability certificate. From the evidence of PW2, it is clear that, as a coolie, the claimant has permanent disability of 30%. No dispute was raised by the insurer at the time of marking Ext.A14 disability certificate. Therefore, the evidence of PW2 is admissible. PW2 categorically stated that the disability will affect his earning capacity. The right option for the insurer was to refer the injured to another Medical Board for getting another disability certificate from that Board. That was not done, if that be the position, the disability assessed in Ext.A14 is admissible. The age of the injured is 58 and the multiplier is 9. Therefore, the total disability compensation is Rs.3,500x12x9x30/100=Rs.1,13,400/-. The learned Tribunal awarded Rs.26,880/-. The balance is Rs.86,520/-. Therefore, in addition to the award amount, the appellant in M.A.C.A No.3210/2014 is entitled to get enhanced compensation of Rs.86,520/-. Just amount was awarded towards other heads. No interference is necessary. ## **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **-9-** 8. Appellants in M.A.C.A No.1725/2015 contended that the driver of the vehicle was holding valid driving licence to drive a three wheeler and direction to reimburse the amount from the owner of the vehicle by the Tribunal is unsustainable in law. The owner of the vehicle took valid insurance policy before the accident. Sections **2(21), 2(25), 2(35)** and **2(47) of the Motor Vehicles Act, 1988** read as follows: _2(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms;_ _2(25) “motorcab” means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward;_ _2(35) 'public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage;_ _2(47) “transport vehicle” means a public service vehicle, a_ ## **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **-10-** _goods carriage, an educational institution bus or a private service vehicle._ ## 9. Apex court in _**Mukund Dewangan v. Oriental Insurance Company Ltd [2017(3) KLT 1000**_ ## _**(SC)]**_ held as follows _:_ _“The newly incorporated expression 'transport vehicle' in S.10(2)(e) would include only the vehicles of the category as defined in S.2(16)-heavy goods vehicle, S.2(17)-heavy passenger motor vehicle, S.2(23)medium goods vehicle and S.2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in S.2(21).”_ The specific case of appellants in M.A.C.A No.1725/2015 was that the driver of the vehicle was holding valid driving licence at the time of accident. Ext.A7 is the copy of the driving licence particulars, which was not properly analysed by the learned Tribunal. The learned counsel appearing for the insurer contended that badge is mandatory. The three wheeler autorickshaw is a Motor Cab which is a light motor vehicle and no separate endorsement is necessary. ## **M.A.C.A Nos. 3210 of 2014 & 1725 of 2015** **-11-** Appreciating the principle, in _**Mukund Dewangan**_ (supra) I am of the view that the driver was holding valid driving licence on the date of accident and the direction to reimburse the amount from the owner is unsustainable in law. In the circumstances, the direction to reimburse the amount from the owner is hereby set aside. The insurer is directed to satisfy the award and enhanced compensation of Rs.86,520/- (Rupees Eighty Six Thousand Five Hundred and Twenty only) with 7.5% interest and proportionate cost within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. These appeals are disposed of, accordingly. Sd/- **P.D.RAJAN JUDGE** bng