Mariyamma Mathew v. National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940** **MACA.NO. 4212 OF 2017** **AGAINST THE AWARD IN O.P.(M.V.) NO.715/2012 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-III, PATHANAMTHITTA DATED 16-06-2017** ## **APPELLANT/PETITIONER :** **MARIYAMMA MATHEW, W/O.A.J.MATHEW, MARY VILLA, PULLAD P.O., PULLAD.** **BY ADV. SRI.A.N.SANTHOSH** **RESPONDENT/2ND RESPONDENT :** **THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, NELSON COMPLEX, PUTHIYIDOM, PB NO.60, KAYAMKULAM-690502.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2019, ALONG WITH MACA NO.580/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 4212 OF 2017 & MACA.No. 580 of 2018 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940** **MACA.NO. 580 OF 2018** **AGAINST THE AWARD IN O.P.(M.V.) NO.715/2012 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-III, PATHANAMTHITTA DATED 16-06-2017** ## **APPELLANT/2ND RESPONDENT :** **NATIONAL INSURANCE COMPANY LIMITED, KAYAMKULAM NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M. G. ROAD, KOCHI-35.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER :** **MARIYAMMA MATHEW, W/O. A. J. MATHEW, MARY VILLA, PULLAD P.O., PIN-689548.** **(NO RELIEFS ARE CLAIMED AGAINST THE 1[ST] RESPONDENT IN THE ABOVE ORIGINAL PETITION AND HENCE HE IS NOT MADE A PARTY IN THIS APPEAL.)** **BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2019, ALONG WITH MACA NO.4212/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 4212 OF 2017 &** **MACA.No. 580 of 2018 3** ## **JUDGMENT** These appeals are preferred against the award in O.P. (M.V.) No.715 of 2012 of the Additional Motor Accidents Claims Tribunal-III, Pathanamthitta. Appellant in M.A.C.A No.4212 of 2017 sustained injuries in a motor accident and the Motor Accidents Claims Tribunal awarded Rs.11,59,800/- (Rupees Eleven Lakh Fifty Nine Thousand Eight Hundred only) as compensation. Being aggrieved by that, the injured preferred M.A.C.A No.4212 of 2017 and the insurer preferred M.A.C.A No.580 of 2018. 2. It would be relevant and useful to refer the facts leading to the accident. On 06.03.2012 at 11.30 a.m., the appellant was travelling in an autorickshaw KL-3/G-9024 and when she reached at Moscopadi, a car bearing registration No.KL-03/U-4739 driven in a rash and negligent manner hit against the autorickshaw, as a result she sustained serious injuries. The accident was due to the rash and negligent driving by its driver, who was ex parte. The insurer admitted the insurance of the vehicle. Claimant did not adduce any oral evidence, but her documents were marked as Exts.A1 to A15. **MACA.NO. 4212 OF 2017 & MACA.No. 580 of 2018 4** 3. Learned counsel for the appellant in M.A.C.A No.4212 of 2017 contended that the injured sustained serious injuries in the accident. She is a house wife and her income was Rs.8,000/- per month. She was aged 59 years and 40% permanent disability. Now she is disabled and unable to do any work. 4. Learned counsel appearing for appellant (insurer) in M.A.C.A No.580 of 2018 contended that excess amount was awarded towards Loss of earnings hence the monthly income taken by the Tribunal has to be reduced. Moreover, Rs.2,00,000/- awarded towards pain and sufferings is also very high. 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: “ 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. **MACA.NO. 4212 OF 2017 &** **MACA.No. 580 of 2018** **5** 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 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 **MACA.NO. 4212 OF 2017 &** **MACA.No. 580 of 2018 6** matter of determination of compensation”. 6. 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. Ext.A6 is the copy of the wound certificate. Ext.A7 discharge summary shows that she sustained Type I segmental fracture left femur, type I open fracture tibia right, communated fracture actabulam left with central fracture D/L, fracture shaft of humerus left, comminunated fracture left ulna and distal radius right, fracture right lateral femoral condyle, unstable fracture pelvis and sacroiliac disruption left. Ext.A8 discharge summary shows that she was again admitted at KIMS hospital on 15.03.2012 and discharged on 31.03.2012. Ext.A11 shows that she had undergone fixation of open fracture femur, ## **MACA.NO. 4212 OF 2017 &** **MACA.No. 580 of 2018 7** wound debridement of open tibia, ORIF of humerus, skeletal traction of left hip and reconstruction of pelvic. Ext.A12 disability certificate shows 40% permanent disability. 7. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. There can be no uniform standard 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 different. 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. In practical terms it is found that the 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. 8. The appellant in M.A.C.A. No.4212 of 2017 contended that she is a house wife and was getting Rs.8,000/- per month, but the Motor Accidents Claims **MACA.NO. 4212 OF 2017 & MACA.No. 580 of 2018 8** Tribunal took Rs.5,000/- as the monthly income for calculating disability compensation. In view of **Dixit Kumar and Ors.** Vs. **Om Prakash Goel [(2017) ACJ 2057]** , her income is taken as Rs.8,000/- per month. In view of **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)],** 10% has to be added towards future prospects and the total monthly income comes to Rs.8,800/-. The multiplier is 9. Therefore, she is entitled to get an amount of Rs.3,80,160/- (8,800x12x9x40/100) for permanent disability. The learned Tribunal awarded Rs.2,16,000/- and the balance is Rs.1,64,160/-. Even though the appellant in M.A.C.A No.580 of 2018 contended that excess amount was awarded by the Tribunal for pain and sufferings, no circumstances are brought before me to reduce that amount. She sustained serious fractures and 40% permanent disability, hence the amount awarded by the Tribunal towards pain and sufferings is just and reasonable. She is entitled to get just amount as compensation. Hence, an amount of Rs.30,000/- is awarded for loss of income for ten months and Rs.50,000/- is awarded towards Loss of amenities. Just amount was **MACA.NO. 4212 OF 2017 &** **MACA.No. 580 of 2018 9** awarded under other heads. Accordingly, the appellant in M.A.C.A. No.4212 of 2017 is entitled to get Rs.2,44,160/(Rupees Two Lakh Forty Four Thousand One Hundred and Sixty only) with 9% interest and proportionate cost in addition to the award amount. The 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. M.A.C.As are disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ NS P.A. To Judge