National Insurance Co. Ltd. v. C.B. Sasidharan @ Sasikumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940** **MACA.NO. 3245 OF 2014** **AGAINST THE AWARD IN O.P.(M.V.) NO.814/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 27-08-2014** **APPELLANT/3RD RESPONDENT :** **NATIONAL INSURANCE COMPANY LIMITED, ALUVA, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G ROAD, KOCHI-35.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER :** **C.B.SASIDHARAN @ SASIKUMAR S/O BHASKARAN NAIR, SARIKA NIVAS, KODUVAZHANGA, NEERIKODE, ALANGAD P.O., ALANGAD VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT, PIN-683521.** **(NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 & 2 IN THE ABOVE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL).** **BY ADVS. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2018, ALONG WITH M.A.C.A. NO.1078/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 3245 OF 2014 &** **MACA.NO. 1078 OF 2015 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940** **MACA.NO. 1078 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.814/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 27-08-2014** ## **APPELLANT/PETITIONER :** **C.B.SASIDHARAN @ SASIKUMAR, S/O.BHASKARAN NAIR, SARIKA NIVAS, KODUVAZHANGA, NEERIKODE, ALANGADU P.O., ALANGADU VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT/3RD RESPONDENT :** **NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, PUMP JUNCTION, ALUVA P.O., ERNAKULAM DISTRICT-683101.** **BY ADVS. SRI.MATHEWS JACOB (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2018, ALONG WITH M.A.C.A. NO.3245/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 3245 OF 2014 &** **MACA.NO. 1078 OF 2015 3** ## **JUDGMENT** These appeals are preferred against the award in O.P. (M.V.) No.814 of 2009 of the Motor Accidents Claims Tribunal, North Paravur. M.A.C.A. No.3245 of 2014 was preferred by the insurer and M.A.C.A. No.1078 of 2015 was preferred by the injured. Appellant in M.A.C.A. No.1078 of 2015 sustained injuries in a motor accident and the Motor Accidents Claims Tribunal awarded compensation of Rs.28,36,700/- (Rupees Twenty Eight Lakh Thirty Six Thousand Seven Hundred only) with 8% interest and proportionate cost. Being aggrieved by that, the claimants and insurer preferred the above appeals. 2. The accident was on 04.05.2009 at 9.30 a.m., at Mariyapady on the Alangad-Aluva public road. The injured was riding his motorcycle, when he reached at the place of occurrence, another bus KL-7/AQ-5150 driven in a rash and negligent manner hit against the claimants vehicle. As a **MACA.NO. 3245 OF 2014 & MACA.NO. 1078 OF 2015 4** result, he sustained serious injuries. Immediately he was removed to the hospital. The 1[st] respondent is the driver and the 3[rd] respondent is the insurer. The driver and owner were ex parte in the lower court. The insurer admitted the insurance of the vehicle. Claimant examined PW1 and his documents were marked as Exts.A1 to A19. Respondent examined RW1. 3. Learned counsel appearing for the appellant in M.A.C.A No.3245 of 2014 contended that the injured was a Head Pantry Man, Indian Coffee House and after the accident, he took voluntary retirement. There was no financial loss to the injured after getting retirement, hence, the award amount towards loss of earning Rs.58,100/- is to be deducted. Moreover, future prospects is not allowable since he took voluntary retirement. 4. Learned counsel appearing for the appellant in M.A.C.A No.1078 of 2015 contended that voluntary retirement was taken due to 85% permanent disability which **MACA.NO. 3245 OF 2014 & MACA.NO. 1078 OF 2015 5** affected his future life. Considering the age of the injured 30% future prospects has to be taken for awarding just compensation which was not granted by the Tribunal. The learned Tribunal took the multiplier of 13, but the right multiplier is 14. The appellant is entitled to get just amount as compensation. 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. 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 **MACA.NO. 3245 OF 2014 & MACA.NO. 1078 OF 2015 6** 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 **MACA.NO. 3245 OF 2014 & MACA.NO. 1078 OF 2015 7** cannot be any rigid or mathematical precision in the matter of determination of 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. 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. When two persons sustain **MACA.NO. 3245 OF 2014 & MACA.NO. 1078 OF 2015 8** 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. Apex Court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** held that the injured is entitled to get just amount of compensation which reads as follows: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, **MACA.NO. 3245 OF 2014 & MACA.NO. 1078 OF 2015 9** concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 8. The injury sustained in the accident was not disputed by the respondents in the lower court. Appellant in M.A.C.A No.1078 of 2015 sustained serious head injury and he is suffering from Hemiplegia. His disability is assessed as 85%. He is entitled to get just amount as compensation. While awarding compensation, the Tribunal has to consider expenses relating to treatment, hospitalization, medicine, transportation and other miscellaneous expenses during his hospitalization and after discharging from the hospital also. If the injury resulted in loss of earning capacity that is a major factor to be considered for awarding disability **MACA.NO. 3245 OF 2014 &** **MACA.NO. 1078 OF 2015 10** compensation. He is also entitled to get loss of earning during the period of treatment. The loss of future earning on account of permanent disability is another major factor to be considered by the Tribunals. In permanent disability cases, if the injured needs future treatment, the Tribunal has to award future medical treatment also. The damages towards pain and suffering and the consequence of the injury are also to be compensated. The loss of amenities, loss of enjoyments of life, loss of expectation of life that means shortening of normal longevity of life are other relevant factors to be considered in permanent disability cases. ## 9. Apex Court in **National Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)]** held as follows: 61. 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. **MACA.NO. 3245 OF 2014 &** **MACA.NO. 1078 OF 2015 11** (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 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 **MACA.NO. 3245 OF 2014 & MACA.NO. 1078 OF 2015** **12** 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. ## 10. The learned Tribunal awarded the following ## amounts as compensation. |Sl.<br>No.|Head of claim|Amount<br>claimed (in<br>Rupees)|Amount<br>awarded (in<br>Rupees)|Basis -Vitals<br>detail in<br>nutshell| |---|---|---|---|---| |1|Medical expenses|6,00,000/-|6,54,200/-|(Ext.A8 & A10<br>series)| |2|Transportation<br>expenses|50,000/-|10,000/-|(Ext.A9 series)| |3|Loss of earnings|70,000/-|58,100/-|| |4|Pain and sufferings|4,00,000/-|3,00,000/-|| |5|Compensation<br>for<br>permanent disability|13,00,000/-|12,84,400/-|85.00%| |6|Loss of amenities,<br>discomforts<br>&<br>inconvenience caused|3,00,000/-|2,00,000/-|| |7|Bystander expenses|Nil|50,000/-|| |8|Future<br>bystander<br>expenses|Nil|1,80,000/-|| |9|Future<br>medical<br>expenses|Nil|1,00,000/-|| ||Total|Rs.27,20,000/-<br>Claim limited<br>to<br>Rs.25,00,000/-|Rs.28,36,700/-|| The total compensation awarded by the tribunal is Rs.28,36,700/- (Rupees Twenty Eight Lakh Thirty Six Thousand Seven Hundred only). He claimed Rs.9,686/- as his **MACA.NO. 3245 OF 2014 & MACA.NO. 1078 OF 2015 13** monthly income. Considering his future prospects, in view of **Pranay Sethi (Supra),** 25% (9686x25%=2422), is added towards future prospects, hence the monthly income will be Rs.12,108/- (9686+2422) and the injured is entitled to get Rs.17,29,022/- (12,108x12x14x85%) towards permanent disability. The Tribunal awarded Rs.12,84,400/- on that head. The balance is Rs.4,44,622/-. The learned counsel contended that the appellant is paralysed and compensation for future treatment and bystander expenses are also necessary for his movement. At present also he is suffering from severe pain, therefore, the learned counsel seeks for an enhancement for permanent disability and loss of amenities. If that be the position, the slight increase in the amount is necessary. Hence an additional amount of Rs.1,00,000/- is awarded for pain and sufferings and an additional amount of Rs.1,00,000/- is awarded towards Loss of amenities. No further increase is necessary towards other heads. The compensation awarded by the Tribunal is modified **MACA.NO. 3245 OF 2014 &** **MACA.NO. 1078 OF 2015** **14** ## as follows: |Sl.<br>No.|Head of claim|Amount<br>awarded (in<br>Rupees)|Amount<br>Modified|Basis<br>-Vitals<br>detail in<br>nutshell| |---|---|---|---|---| |1|Medical expenses|6,54,200/-|6,54,200/-|(Ext.A8 &<br>A10 series)| |2|Transportation<br>expenses|10,000/-|10,000/-|(Ext.A9<br>series)| |3|Loss of earnings|58,100/-|58,100/-|| |4|Pain and sufferings|3,00,000/-|4,00,000/-|| |5|Compensation<br>for<br>permanent disability|12,84,400/-|17,29,022/-|85.00%| |6|Loss of amenities,<br>discomforts<br>&<br>inconvenience caused|2,00,000/-|3,00,000/-|| |7|Bystander expenses|50,000/-|50,000/-|| |8|Future<br>bystander<br>expenses|1,80,000/-|1,80,000/-|| |9|Future<br>medical<br>expenses|1,00,000/-|1,00,000/-|| ||**Total**|**Rs.28,36,700/-**|**Rs.34,81,322/-**|| 11. Accordingly, the appellant in M.A.C.A No.1078 of 2015 is entitled to get enhanced compensation of Rs.6,44,622/- (34,81,322-28,36,700) (Rupees Six Lakh Forty Four Thousand Six Hundred and Twenty Two only) with 9% interest and proportionate cost in addition to Rs.28,36,700/(Rupees Twenty Eight Lakh Thirty Six Thousand Seven **MACA.NO. 3245 OF 2014 & MACA.NO. 1078 OF 2015 15** Hundred only) awarded by the learned Tribunal. Appellant in M.A.C.A No.3245 of 2014 claimed that since the injured has taken voluntary retirement, the benefits received under the voluntary retirement scheme shall be adjusted with the award amount. That claim is unsustainable and I reject that claim. Therefore, M.A.C.A No.3245 of 2014 is dismissed. M.A.C.A. No.1078 of 2015 is partly allowed. 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. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge