MACA Nos.387 & 1495 of 2016

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 22ND DAY OF JUNE 2018 / 1ST ASHADHA, 1940** **MACA.No. 387 of 2016** **OP(MV).1069/2010 of 1[st] ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL (1[st] ADDL. DISTRICT COURT), KOZHIKODE** ## **APPELLANT/3RD RESPONDENT :** **UNITED INDIA INSURANCE COMPANY LIMITED, PUNE NOW REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI - 11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER :** **PRABEESH, S/O. PRABHAKARAN, CHEEKKONNUM CHALIL HOUSE, NO.3/214, MOKERI P.O., KAKKATTIL, VIA VATAKARA, PIN - 673 516.** **BY ADV. SRI.V.N.RAMESAN NAMBISAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2018, ALONG WITH M.A.C.A.1495/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **25.7.2018** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A Nos.387 & 1495 of 2016 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 22[nd] day of June, 2018 ## **JUDGMENT** These appeals are preferred against the award in OP(MV) Nos.1069/2010 of the Addl. Motor Accidents Claims Tribunal-I, Vadakara. The learned Tribunal awarded Rs.31,52,020/- with 9% interest and proportionate cost as compensation to the victim in the above case. Being dissatisfied by the award amount, M.A.C.A No.1495/2016 was preferred by the injured and M.A.C.A No.387/2016 was preferred by the insurer. 2. There was no dispute in the lower court about the accident. The claimant's case was that on 27.06.2010 at 4.30 pm, he was travelling as a pillion rider in KL-18D 8764 from Vatakara to Kainaty, when he reached near Ash Hospital, a lorry MH-12/DT 4426 came in a rash and negligent manner and hit against the motor cycle, as a result he sustained serious injuries. Immediately, he was removed to hospital. The driver and owner of the vehicle were set ex-parte. The insurer admitted the insurance of the vehicle. The claimant was ## **M.A.C.A Nos.387 & 1495 of 2016** -2- examined as PW1 and his documents were marked as Exts.A1 to A15. The disability certificates were marked as Exts. C1 and C2. Respondents did not adduce any evidence. 3. The learned counsel appearing for the appellant in M.A.C.A No.387/2016 (the insurer) contended that huge amount was awarded by the Tribunal in this case. The income taken by the Tribunal for assessing permanent disability was Rs.15,000/- and disability was taken at 80%. Moreover, Rs.1,80,000/- was awarded towards loss of income. The injured is entitled to get loss of income from the date of injury upto the date of filing of the claim petition, that is only for four months. 4. The learned counsel appearing for the appellant in M.A.C.A No.1495/2016 (the injured) contended that the injured was working in Sharjah as a juice maker and was getting 2200 Durham, the present exchange rate of one Durham is Rs.18.5, which is equal to Rs.40,700/- of Indian currency, which was certified by the Alnajlah Cafeteria and job visa was endorsed in Ext.A11 ## **M.A.C.A Nos.387 & 1495 of 2016** -3- passport. The injured was permanently appointed as a juice maker in that firm and no chance to reduce the salary. Due to the impact of the injury, he could not return to the firm and continued his job at Alnajlah Cafeteria and he is entitled to get Rs.20,000/- per month as the income for calculating disability. 5. 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 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 ## **M.A.C.A Nos.387 & 1495 of 2016** -4- 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.” 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. 6. 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. ## **M.A.C.A Nos.387 & 1495 of 2016** -5- 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. 7. The learned counsel appearing for the insurer submitted that the Division Bench decision of this court in _**Valsamma v. Binu Jose (2014 (1) KLT 10),**_ it was observed that the job in gulf is not certain and it is likely to terminate at any time. He is not a permanent employee and the income taken by the Tribunal has to be reduced. In Para 11, it was held as follows: _“11. The case of the appellants is that the deceased was aged 29 years and working as spray painter in_ ## **M.A.C.A Nos.387 & 1495 of 2016** -6- _Oman and getting Rs.20,000/- per month. In order to prove the same, they have produced Ext.A5 agreement entered into between the deceased with one Bahwan Automotive Centre, Sultanate of Oman dated 15.5.2001, a labour card Ext.A7 and Ext.A8 passport. But, these documents were not proved in accordance with law. The executant of Ext.A6 was not examined to prove the contents of the same. The passport entry will go to show that he is having visa upto 25.3.2005 and the accident in this case occurred on 18.9.2004. So, those documents are not sufficient to prove that he is having so much income there. It may be mentioned here that employment in gulf countries is not certain and it is likely to be terminated at any time. So, under such circumstances, it cannot be said that it is a permanent employment as in a government service there. If he is a permanent employee there, then that can be taken as a permanent income and that may be useful to assess the compensation payable to the dependents of the victim on that basis. In the case of a non-permanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head 'loss of dependency'. So, in such circumstances, we will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during the relevant time and the income which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is_ ## **M.A.C.A Nos.387 & 1495 of 2016** -7- _likely to be terminated at the whims and fancies of the sponsor cannot be relied upon. So, the Tribunal was perfectly justified in not relying on the document produced and the income alleged to have been derived by the deceased at Oman for the purpose of considering the compensation payable on his death.”_ It is true that the employment in Gulf countries is not certain on various occasions. But, when a permanent job visa is issued, the situation is different and therefore, the income of such employee will remain static till his retirement from that job. There is every likelihood of terminating the temporary employees working abroad especially in Gulf countries. But, we cannot take it as a general norm, when he is a permanent employee there. In this case, the injured claimed Rs.20,000/- as his monthly income. But considering the Indian money value and his employment, the learned Tribunal took Rs.15,000/- as his monthly income. Even though, the insurer contended that the income is very high, I am of the view that just amount was taken. The claimant contended that his income has to be fixed at the rate of Rs.20,000/- per month, but in the ## **M.A.C.A Nos.387 & 1495 of 2016** -8- interest of justice, the amount taken by the Tribunal is just and reasonable. 8. Apex court in _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ held as follows: - 6 _1. 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 40_ ## **M.A.C.A Nos.387 & 1495 of 2016** -9- _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._ 9. However, for calculating the disability compensation, 40% of the income has to be added along with the monthly income towards his future prospects. Since the injured was aged 24 years at the time of accident, the monthly income will be Rs.15,000+6,000=Rs.21,000/-. As per Ext.C1, the disability is 35%, but Ext.C2 shows 85% disability. Ext.A8 ## **M.A.C.A Nos.387 & 1495 of 2016** -10- shows 80% disability. Ext.A9 shows 80% disability. Since Ext.C2 was issued from Medical College Hospital, Kozhikode, that is relevant and acceptable. Ext.C1 was issued from the Taluk Head Quarters Hospital, Vatakara, Ext.A8 was issued from the District Medical Board and Ext.A9 was issued from Ganga Hospital. If that be the position, the injured is entitled to get following amount as compensation. Rs.21,000x12x18x85/100= Rs.38,55,600/-. The learned Tribunal awarded Rs.25,92,000/-. The balance amount is Rs.12,63,600/-. Therefore, the injured is entitled to get additional compensation of Rs.12,63,600/- for disability compensation. 10. The learned counsel appearing for the appellant (insurer) in M.A.C.A No.387/2016 contended that the Tribunal awarded Rs.1,80,000/- towards loss of earning for twelve months. The injured is not entitled to get that much amount. He is entitled to get compensation for four months alone. I also agree with the argument advanced by the counsel. After four months of the accident, he preferred the above claim petition and the ## **M.A.C.A Nos.387 & 1495 of 2016** -11- disability compensation was awarded from the date of filing application for compensation. If that be the position, he is entitled to get Rs.60,000/- alone. The balance amount of Rs.1,20,000/- has to be deducted from the total compensation. The balance amount is Rs.12,63,6001,20,000=Rs.11,43,600/-. Just amount amount was awarded by the Tribunal towards other heads and no further increase is necessary. In the circumstances, in M.A.C.A No. 1495/2016, the the appellant is entitled to get enhanced compensation of Rs.11,43,600/- with 9% interest from the date of petition till realisation with proportionate cost. The insurer is directed to satisfy the award 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. In the circumstances, M.A.C.A No.387/2016 and M.A.C.A No.1495/2016 are disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng