MACA Nos. 74 of 2015 & 193 of 2016, Life David v. Hassainar & ors. (High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940** ## **MACA.No. 74 of 2015** **AGAINST THE AWARD IN OPMV 511/2011 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM DATED 03-07-2014** ## **APPELLANT/PETITIONER IN M.V.O.P:** **LIFE DAVID AGED 33 YEARS S/O.DAVID, PULIKKAL HOUSE, ADARSH NAGAR, CSEZ P.O., THUTHIYOOR, THRIKKAKKARA PANCHAYAT, KAKKANAD VILLAGE, ERNAKULAM.** ## **BY ADV. SRI.T.K.SHAJAHAN** ## **RESPONDENTS/RESPONDENTS IN M.V.O.P:** - **1 HASSAINAR S/O.BAVA, IRUPPIL KOTTIL HOUSE, KUMARAPURAM P.O., PALLIKKARA, KAKKANAD, PIN - 683 565.** - **2 NOUSHAD** **S/O.KASSIM, EYEMASAKUDI HOUSE, CHELAKKULAM KARA, CHELAKKULAM VILLAGE, PATTIMATTOM, PIN - 683 562.** - **3 NATIONAL INSURANCE COMPANY LIMITED 1ST FLOOR, MUNICIPAL SHOPPING COMPLEX BUILDING, NORTH PARAVOOR, PIN - 683 513.** ## **BY ADV. SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2019, ALONG WITH MACA.193/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos. 74 of 2015 & 193 of 2016 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940** **MACA.No. 193 of 2016** **AGAINST THE AWARD IN OPMV 511/2011 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/1ST RESPONDENT:** **HASSAINAR, SON OF BHAVA, AGED 55 YEARS, S/O.BAVA, IRUPPIL KOTTIL HOUSE, KUMARAPURAM P.O PALLIKKARA, KAKKANAD, PIN - 683 565.** **BY ADVS. SMT.K.S.SUMITHA SMT.M.M.JASMIN** ## **RESPONDENTS/PETITIONER / RESPONDENT 2 AND 3:** **1 LIFE DAVID AGED 32 YEARS S/O.DAVID, 144(157), PULIKKAL HOUSE, THUTHIYOOR, THRIKKAKKARA PANCHAYATH, ERNAKULAM, PIN - 682 021.** **2 NOUSHAD S/O.KASSIM, EYEMASAKUDI HOUSE, CHELAKKULAM KARA, CHELAKKULAM VILLAGE, PATTIMATTOM, PIN - 683 562.** - **3 NATIONAL INSURANCE CO.LTD** **IST FLOOR, MUNICIPAL SHOPPING COMPLEX BUILDING, NORTH PARAVOOR, PIN - 683 513.** **BY ADVS. SRI.T.K.SHAJAHAN SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2019, ALONG WITH MACA.74/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos. 74 of 2015 & 193 of 2016 3 ## **JUDGMENT** These appeals are preferred against the award in OP(MV) No.511/2011 of the Motor Accidents Claims Tribunal, Ernakulam (the short “the Tribunal”). The petitioner in M.A.C.A No.74/2015 sustained injuries in a motor accident and he preferred the above claim petition under Section 166 of the Motor Vehicles Act, 1988 and the Tribunal awarded compensation of Rs.13,97,920/- and directed the insurer to satisfy the award and reimburse the amount from the owner. Being dissatisfied by the award amount, the injured preferred M.A.C.A No.74/2015 and the owner of the vehicle preferred M.A.C.A No.193/2016. 2. It would be relevant and useful to refer the facts leading to the accident. On 09.09.2010 at 6.50 pm, the appellant in M.A.C.A No.74/2015 was riding a motor cycle KL7/BN 9543 from Kizhakkambalam to Ponjassery, when he reached at Vacheripara Bhagom, a bus KL-40/A 1847 driven in a rash and negligent manner hit against the scooter. As a result, the rider of the scooter was thrown away and sustained serious injuries. Immediately, he was removed to Samaritan MACA.Nos. 74 of 2015 & 193 of 2016 **==> picture [8 x 8] intentionally omitted <==** Hospital, Pazhanganad and from there he was referred to Medical Centre Hospital, Ernakulam and again to Medical Trust Hospital, Ernakulam. The accident was due to the rash and negligent driving of the bus by its driver. The owner and driver were set ex-parte in the lower court. The insurer admitted the insurance of the vehicle, but contended that the vehicle had no fitness certificate at the time of accident. The claimant was examined as PW1 and his documents were marked as Exts.A1 to A14. Ext.C1 is the disability certificate issued by the Medical Board. 3. The learned counsel appearing for the appellant in M.A.C.A No.74/2015 contended that the appellant has permanent disability of 62% and he was a stage decoration worker and getting Rs.10,000/- per month. The learned Tribunal took Rs.4,000/- as the monthly income without any contra evidence. 4. Appellant in M.A.C.A No.193/2016 contended that the vehicle was sold to Mr.Abdul Rahiman and it was holding valid fitness certificate on the date of accident. The owner of the vehicle was not made as a party, hence the MACA.Nos. 74 of 2015 & 193 of 2016 **==> picture [8 x 9] intentionally omitted <==** direction to reimburse the amount from the appellant is unsustainable. 5. The learned counsel appearing for the insurer contended that the changes in the RC records were made only in the year 17.12.2013. Hence, appellant in M.A.C.A No.193/2016 is not the registered owner and correct owner has to be impleaded. Hence, the matter may be remanded to the lower court. 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 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_ MACA.Nos. 74 of 2015 & 193 of 2016 6 _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 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”._ 7. Appellant in M.A.C.A No.74/2015 was aged 30 years at the time of accident. He was working as a stage MACA.Nos. 74 of 2015 & 193 of 2016 **==> picture [8 x 9] intentionally omitted <==** decorator and was getting Rs.10,000/- per month, but the Tribunal took Rs.4,000/- per month. Appellant in M.A.C.A No.74/2015 is entitled to get just amount as 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. The injured was examined as PW1 and his evidence shows that immediately after the accident he was removed to Samaritan Hospital, Pazhanganad and from there he was referred to Medical Centre Hospital, Ernakulam, subsequently he was admitted at Medical Trust Hospital, Ernakulam. 8. The copy of the wound certificate Ext.A4 issued from Medical Trust Hospital, Ernakulam shows that he was treated there on 28.09.2010 due to injuries sustained in a MACA.Nos. 74 of 2015 & 193 of 2016 **==> picture [8 x 9] intentionally omitted <==** road traffic accident. He sustained abrasion on extremities right upper limb, trachecostomy tube and ryle's tube were inserted at the time of examination. His CT brain shows basal sub archinoid hemorrhage and intra articular hemorrhage. Ext.A5 is the discharge summary, which shows that he was impatient there till 19.10.2010. He was sufferings from type III nerve palsy, bilateral 6[th] nerve palsy and left facial UMN palsy. It was also seen that VP shunt was done on 11.10.2010. Subsequently PW1 was treated in CMC, Vellore. Exts.A4 and A5 show that he was admitted in that hospital on 28.09.2010. Ext.A6 is the discharge summary issued from there, which shows that he was admitted there on 25.08.2012 due to post traumatic brachial, plexus injury to right upper limb. Again tracheostomy was done and discharged on 01.09.2012. He produced Ext.A7 another discharge summary from the above hospital, which shows that he was again admitted there on 17.01.2013 and discharged on 31.01.2013. 9. 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 MACA.Nos. 74 of 2015 & 193 of 2016 9 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 sustained to the victim and also on the nature of evidence in that case. PW1 stated that he is permanently disabled and unable to do any work. Ext.C1 is the disability certificate issued from Medical Board which shows 62% permanent disability. The Tribunal took the same disability, which was assessed by the Chairman of Medical College Hospital, Alappuzha. The insurer has no dispute with regard to that aspect. But considering the nature of work, he is entitled to get just amount as compensation. His income is taken as Rs.8,000/- per month. 40% is to be added towards future prospects in view of _**National Insurance Company V.**_ MACA.Nos. 74 of 2015 & 193 of 2016 10 _**Pranay Sethi [2017 (4) KLT 662 (SC)].**_ The total income is Rs.11,200/-. The disability compensation is Rs.11,200x12x17x62/100=Rs.14,16,576/-. The Tribunal awarded 5,05,920/- and the balance amount is Rs.9,10,656/-. Along with that Rs.1,00,000/- is awarded towards future treatment and Rs.2,00,000/- towards loss of amenities and enjoyment and shortening of life. Just amount was awarded towards other heads. Therefore, appellant in M.A.C.A No.74/2015 is entitled to get enhanced compensation of Rs.12,10,656/- (Rupees Twelve Lakhs Ten Thousand Six Hundred and Fifty Six only) with 9% interest from the date of petition till realisation with proportionate cost in addition to the award amount. 10. Appellant in M.A.C.A No.193/2016 contended that the vehicle was holding valid fitness certificate on the date of accident, that is 09.09.2010. The certificate issued by the Joint Regional Transport Officer, Perumbavoor was marked as Ext.B1 and it shows that the Regional Transport Authority issued a fitness certificate to the vehicle KL-40-A-1847 from 10.08.2010 to 09.08.2011 on 02.08.2010 with receipt No.40/50732/2010. The insurer contended that the vehicle MACA.Nos. 74 of 2015 & 193 of 2016 **==> picture [16 x 8] intentionally omitted <==** was transferred to one Abdul Rahiman, S/o. Kochahammed, 2/854, Karukunnathu House, Peringala, Kumarapuram and he was not made as a party. Even though the insurer contended that the RC owner was not impleaded as a party, in view of Section 157 of the Motor Vehicles Act, 1988, it amounts to a deemed transfer and the insurer has a liability to indemnify the third parties. Nothing has been stated by the insurer why necessary changes were made in the insurance policy. In the absence of such evidence, the insurer is liable to indemnify the owner. Hence, the direction to reimburse the amount from the appellant in M.A.C.A No.193/2016 is hereby set aside. The insurer is directed to satisfy the award and enhanced compensation 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. Appellant in M.A.C.A No.74/2015 is not entitled to get interest for future medical treatment. These appeals are disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng/06.03.19