Mohammed s/o Alikutty Haji v. Jose Kollannur House; Jose Thomas; Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940** ## **MACA.NO. 389 OF 2008** **AGAINST THE AWARD IN O.P.(M.V.) NO.402/2001 THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 14.09.2007** ## **APPELLANT/PETITIONER :** **MOHAMMED, S/O ALIKUTTY HAJI, MANAMKANDATH HOUSE, P.O.KADAVALLOOR, VIA KUNNAMKULAM, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**JOSE, KOLLANNUR HOUSE,**| |---|---| ||**WEST MANGAD, THRISSUR DISTRICT.**| |**2**|**JOSE THOMAS, S/O THOMAS**| ||**PULIKKOTTIL HOUSE, PARANNUR,**| ||**CHOONDAL, THRISSUR.**| |**3**|**THE ORIENTAL INSURANCE CO.LTD.**| ||**`U' BROTHERS BUILDING,**| ||**GURUVAYOOR ROAD, KUNNAMKULAM, THRISSUR.**| **BY ADV. SRI.GEORGE CHERIAN (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 389 OF 2008 2** ## **JUDGMENT** This appeal is preferred against the award in O.P. (M.V.) No.402 of 2001 of the Motor Accidents Claims Tribunal, Thrissur by the injured. The appellant sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.2,83,800/- (Rupees Two Lakh Eighty Three Thousand Eight Hundred only) with interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal. 2. Appellant’s case in the lower court was that on 30.04.2000 at 7.30 p.m., he was travelling in a jeep KL-7/F-3938 and reached at Agathiyur, another jeep KL-0/9720 driven in a rash and negligent manner hit against the appellant’s vehicle as a result, he sustained serious injuries. Immediately he was removed to Aswini hospital, Thrisssur. The accident was due to the rash and negligent driving of the 2[nd] respondent, who is the driver of the offending jeep. The driver and owner of the offending vehicle and the driver of the appellant’s vehicle were ex parte in the lower court. The insurer admitted the ## **MACA.NO. 389 OF 2008 3** insurance of the vehicle. This case was tried along with O.P. (M.V **.** ) No.401 of 2001. The evidence consist of oral testimony of PW1 and PW2 and documentary evidence of Exts.A1 to A29. Respondents evidence consist of documentary evidence of Exts.B1 and B2. 3. Learned counsel appearing for the appellant contended that the appellant sustained 56.8% disability, but the Tribunal took only 48% disability. Moreover, the injured was a business man in Dubai and was getting an amount of Rs.10,000/- per month but the learned Tribunal took only 2,000/- for calculating compensation and just amount was not awarded. 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 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 ## **MACA.NO. 389 OF 2008 4** 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 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 ## **MACA.NO. 389 OF 2008 5** 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 sustained to the victim and also on the nature of evidence in that case. 6. In connected appeal M.A.C.A. No.736 of 2008, this court found 20% contributory negligence from the side of the appellant’s vehicle and the driver of the offending vehicle was liable to pay compensation only at the rate of 80%. That finding has become final and both parties have no dispute with regard to that point. Appellant claimed that he was working abroad and was getting Rs.10,000/- per ## **MACA.NO. 389 OF 2008 6** month. He produced Exts.A13 to A16 Pass Books, Ext.A16 statement of account, Ext.A17 deposit receipt, Ext.A18 transfer deed and Ext.A19 certificate from Al Fahidy Restaurant. Ext.A20 is the Karshakasree book and Ext.A21 is the copy of the Passport. Even though he contended that he was doing business with another partner, proper documents from Government of Dubai have not been produced before the court. Ext.A19 shows that he was an employee at Al Fahidy Restaurant, but his salary was not mentioned in that document. If he is conducting any business there, he has to prove that aspect by producing proper records. In the absence of such documents, the learned Tribunal took Rs.2,000/- as his monthly income. Ext.A20 Karshakasree book shows that he was a farmer. Considering that aspect, this Court is inclined to take his income as Rs.3,000/-. He was aged 42 years at the time of accident, hence in view of **National Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)]** 25% (3000x25%) of the income has to be added towards future prospects and the income comes to Rs.3,750/- (3000+750). Ext.A11 disability certificate shows 20% Neurological ## **MACA.NO. 389 OF 2008 7** disability, 40% ophthalmic disability and 10% Orthopedic disability. The total is 70%, but the whole body disability was assessed as 56.8%. He was aged 42 years and the multiplier is 14. Accordingly, the appellant is entitled to get Rs.3,57,840/- (3750x12x14x56.8%) towards permanent disability. The learned Tribunal awarded Rs.1,72,800/- on that head. The balance is Rs.1,85,040/-. He lost the right eye. Hence, in addition to that, an additional amount of Rs.30,000/- is awarded for pain and sufferings, Rs.20,000/for Loss of amenities, Rs.7,000/- for Loss of income, Rs.12,000/- for By stander expenses for six months and Rs.25,000/- for Compensation for disfigurement. The total enhanced compensation is Rs.2,79,040/- (Rupees Two Lakh Seventy Nine Thousand and Forty only). From that amount, he is entitled to get only 80% i.e., Rs.2,23,232/- (Rupees Two Lakh Twenty Three Thousand Two Hundred and Thirty Two only) (2,79,040x80%) with 9% interest and proportionate cost. The insurer is directed to satisfy the award amount of Rs.2,23,232/- (Rupees Two Lakh Twenty Three Thousand Two Hundred and Thirty Two only) with 9% interest from the date of petition till realization with ## **MACA.NO. 389 OF 2008 8** proportionate cost in addition to the award of the Tribunal within 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.A is disposed of as above. NS Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge