National Insurance Co. Ltd. v. Sreelatha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** **M.A.C.A.No. 2500 of 2010** **AGAINST THE AWARD IN OPMV 36/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 03-05-2010** ## **APPELLANT/1ST PETITIONER:** **NATIONAL INSURANCE CO.LTD. 3RD FLOOR, UNIT BUILDING, BANGALORE.P.O, ANNEXE 72, MISSION ROAD, BANGALORE-27.** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENT/CLAIMANT:** **SREELATHA W/O. BALAKRISHNAN PILLAI, KUZHUPPILLIL HOUSE, PUTHALATH ROAD, KALAMASSERY, ERNAKULAM,REPRESENTED, BY HER HUSBAND BALAKRISHNAN, KUZHUPILLIL HOUSE,, PUTHALATH ROAD, KALAMASSERY, ERNAKULAM-683 104.** **BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 2500/2010 and C.O 15/2011 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** **CO.No. 15 of 2011 IN MACA. 2500/2010** **AGAINST THE ORDER/JUDGMENT IN MACA 2500/2010 of HIGHCOURT** ## **APPELLANT/RESPONDENTS IN MACA NO.2500/2010:** **SREELATHA** **W/O. BALAKRISHNAN PILLAI, KUZHUPPILLIL HOUSE, PUTHALATH ROAD, KALAMASSERY, ERNAKULAM,REPRESENTED, BY HER HUSBAND BALAKRISHNAN, KUZHUPILLIL HOUSE,, PUTHALATH ROAD, KALAMASSERY, ERNAKULAM-683 104.** **BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI** ## **RESPONDENT/APPELLANT IN MACA NO.2500/2010:** ## **NATIONAL INSURANCE CO.LTD.** **3RD FLOOR, UNIT BUILDING, BANGALORE.P.O, ANNEXE 72, MISSION ROAD, BANGALORE-27.** **BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2018, ALONG WITH MACA.2500/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 2500/2010 and C.O 15/2011 3** ## **JUDGMENT** This appeal is preferred by the insurer against the award in OP(MV) 36/2006 of Motor Accidents Claims Tribunal, Ernakulam. First respondent in the appeal sustained injuries in a Motor accident while travelling in a Qualis van and the Motor Accidents Claims Tribunal awarded compensation of Rs.7,57,520/- with interest and cost, and directed the insurer to satisfy the award, hence this appeal. 2. It would be relevant and useful to mention the facts leading to the accident. The claimant's case is that on 20.7.2004, the first respondent was travelling with her relatives from Thrissur to Bangalore and when they reached at Thimmapuram, the vehicle collided with a tanker lorry, as a result, the passengers in the van sustained serious injuries. The insurer of the van contended that the driver, owner and the insurer of the lorry are necessary parties. The additional respondents 2 to 4 are the legal representatives of the deceased driver, and they were ex parte in the lower court. Claimants evidence consists of oral testimony of PW1 and Exts.A1 to A20. 3. The claimants preferred Cross Objection 15/2011 for enhancement of the compensation amount. The learned Tribunal **M.A.C.A.No. 2500/2010 and C.O 15/2011 4** awarded following amounts as compensation :- |Head of earnings<br> <br>Loss of earnings<br>:<br>Attendant expenses (past)<br>:<br>Medical Expenses<br>:<br>Pain & sufferings<br>:<br>Loss of amenities and<br>expectation in life<br>:<br>For permanent disability &<br>earning power<br>:<br>Attendant expenses &<br>future treatment<br>:<br>**Total**<br>**:**|Amount awarded|Amount awarded| |---|---|---| ||<br>|2,10,800/-<br>22,000-<br>1,21,720<br>40,000<br>40,000<br>1,44,000<br>1,69,000<br>**7,57,520**| 4. The assessment of compensation in permanent disability cases 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 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. **M.A.C.A.No. 2500/2010 and C.O 15/2011 5** 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. 5. Apex Court in _**Yadava Kumar**_ v. _**D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567)**_ 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 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). **M.A.C.A.No. 2500/2010 and C.O 15/2011 6** 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”. 6. Learned counsel appearing for the appellant contended that Rs.1,69,000/- was awarded towards attendant expenses & future treatment and no interest can be awarded for that amount from the date of accident. The injured was working in the KSEB office as Asst. Engineer, her income was taken as 10,000/- after retirement. Since, she is continuing in her employment, there is no loss of income, therefore the income taken by Tribunal is to be reduced. 7. The learned counsel appearing for the Cross Objectioner ## **M.A.C.A.No. 2500/2010 and C.O 15/2011 7** contended that, future prospects was not considered by the Tribunal and only Rs.10,000/- was taken as the monthly income. She was aged 53 years at the time of accident and the multiplier is 11, but the Tribunal took 9 as the multiplier. In permanent injury case, the injured is entitled to get higher amount of compensation than 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 circumstances have been taken into consideration. For loss of earning power or reduction in earning power the multiplier method has to be followed to calculate pecuniary loss upon annual basis. 8. It is true that the injured was aged 53 years at the time of accident and the correct multiplier is 11, in view of **Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104).** A full bench decision of the Apex court in **National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]** held that 15% has to be added towards future prospects since the victim had permanent job. It ## **M.A.C.A.No. 2500/2010 and C.O 15/2011 8** is not necessary to take split multiplier which is against the decision of the Supreme court in **Sarala Varma (supra)** case. Hence, the income Rs.10,000 is just and reasonable, even after retirement also she can earn some money. Considering this aspect, multiplier 11 taken is just and reasonable. In the circumstances, 15% is added towards future prospectus, the income will be 11,500/-. Ext.A15 disability certificate shows 90% disability. Therefore the injured/ claimant is entitled to get Rs.13,66,200/-(11,500x12x11x90%) for permanent disability. The learned tribunal awarded Rs.1,44,000/- on that head and the balance is Rs.12,22,200/- towards permanent disability. 9. In this context, I have considered whether the loss of income Rs.2,10,800/- awarded by the tribunal is justifiable or not. The accident was on 20.7.2004 and the claim was filed in the year 2006. She sustained injury to brain and undergoing treatment, therefore she has to be compensated for those days since she was disabled and unable to go for work. Hence that finding need not be disturbed. Towards future attendant expense and future treatment, Tribunal awarded Rs.1,69,000/-, for that she is not entitled to get interest for the amount. All other findings of the Tribunal is upheld. Since the claimant sustained injuries to the brain, she is entitled to get **M.A.C.A.No. 2500/2010 and C.O 15/2011 9** additional amount of Rs.60,000/- towards pain and sufferings. 10. Therefore, the Cross objectioner is entitled to get enhanced compensation of Rs.12,82,200/- (12,22,200+60,000) with 9% interest and proportionate costs in addition to the award amount . Insurer is directed to satisfy the 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. In the circumstances, this appeal and cross objection are partly allowed as above. **SD/-** ACM / 30.10.2018 **P.D.RAJAN JUDGE**