National Insurance Co. Ltd. v. Srinivasan and Sunil Kumar R.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 7TH DAY OF JUNE 2018 / 17TH JYAISHTA, 1940** **MACA.NO. 439 OF 2012** **AGAINST THE AWARD IN O.P.(M.V.) NO.169/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR DATED 21-10-2011** **------------------------** **APPELLANT(S)/2ND RESPONDENT :** **---------------------------** **NATIONAL INSURANCE CO. LTD., D.O. KOLLAM, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN-682035.** **BY ADV.SRI.E.M.JOSEPH** **RESPONDENT(S)/CLAIMANT AND 1[ST] RESPONDENT:** **-----------------------------------------** **1. SRINIVASAN, AGED 35, S/O. RAMACHANDRAN, SREE NILAYAM, EZHAMKULAM, THINGALKARIKKOM VILLAGE, KOLLAM DISTRICT-691310.** **2. SUNIL KUMAR R., MANI MANDIRAM,(DELETED) AGASTHYACODE, ANCHAL, KOLLAM DISTRICT-691312.** **RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 04.02.2013 IN I.A. NO.265 OF 2013.** **R1 BY ADV. SRI.ANCHAL C.VIJAYAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-06-2018 ALONG WITH M.A.C.A. NO.2138 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. Nos.439 & 2138 of 2012 ---------------------------------Dated this the 7[th ] day of June, 2018** ## **J U D G M E N T** These appeals are preferred against the award in O.P.(M.V.) No.170 of 2007 of the Motor Accidents Claims Tribunal, Punalur. The claimant's case (appellant in M.A.C.A. 2138 of 2012) in the lower court was that on 05.09.2006 at 12.50 p.m, while he was travelling in a motorcycle KL-4/6871 through Punalur-Anchal public road as a pillion rider, when he reached at Mavila Junction, a car KL-2/H-4932 driven in a rash and negligent manner hit against the motorcycle as a result, the rider and pillion rider sustained serious injuries. He was admitted in St.Joseph Hospital, Anchal and subsequently, he was referred to S.P. Fort Hospital, Thiruvananthapuram, where his right leg was amputated. The learned Tribunal awarded Rs.14,00,000/- (Rupees Fourteen Lakhs only) as compensation. Being aggrieved by that, the injured preferred M.A.C.A No.2138 of 2012 and the insurer preferred M.A.C.A. No.439 of 2012 M.A.C.A. Nos.439 & 2138 of 2012 2 disputing the amount awarded by the Tribunal. 2. In the lower court, the owner and driver of the vehicle contested the matter by filing separate written statements. The driver of the vehicle was impleaded as additional respondent No.3, who denied the negligence. Insurer admitted the insurance of the vehicle, but disputed the accident. O.P.(M.V.) No.169 of 2017 and O.P.(M.V.) No.170 of 2009 were tried jointly. Claimant examined PWs.1,2 and 3 and the documents were marked as Exts.A1 to A20. Even though the respondents disputed the accident, they did not adduce any oral or documentary evidence. 3. Learned counsel appearing for the injured (appellant in M.A.C.A. No.2138 of 2012) contended that the injured sustained serious injuries in the accident, and his right leg above knee was amputated at S.P. Fort Hospital, Thiruvananthapuram. He had undergone four surgeries on 5/9/2006, 6/9/2006, 7/9/2006 and 30/9/2006, but the learned Tribunal awarded very meagre amount for pain and sufferings. The disability affected his earning M.A.C.A. Nos.439 & 2138 of 2012 3 capacity. Future prospects also has not been considered by the learned Tribunal. The Tribunal ought to have taken 100% functional disability while awarding compensation. The amount awarded under other heads are also very meagre. 4. Learned counsel appearing for the insurer (appellant in M.A.C.A. No.439 of 2012) contended that very high amount was awarded towards loss of amenities and for purchasing artificial limb. Even though the employer was examined, the Tribunal took higher amount as the monthly income of the injured. When exorbitant amount is awarded by the Tribunal, interference by this Court is necessary. The multiplier taken by the Tribunal is also at a higher side and the proper multiplier is 17. 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 M.A.C.A. Nos.439 & 2138 of 2012 4 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.” 6. 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 M.A.C.A. Nos.439 & 2138 of 2012 5 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 principle of assessing compensation has been specifically stated by the Apex Court in **Raj Kumar** v. **Ajay Kumar [2011 (1) KLT 620 (SC)],** in which it was held in paragraph 8 as follows: “ Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume M.A.C.A. Nos.439 & 2138 of 2012 6 that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (see for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co.Ltd.-2010 (10) SCALE 298 and Yadava Kumar v. D.M. National Insurance Co. Ltd.2010 (8) SCALE 567. ” ## 8. The injured in a motor accidents claim is entitled to get just amount as compensation. In permanent injury M.A.C.A. Nos.439 & 2138 of 2012 7 case, the injured is entitled to get higher income 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. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. 9. It is true that immediately after the accident, he was admitted in St. Joseph Hospital, Anchal. Ext.A7 is the wound certificate which shows that the appellant sustained heavily contaminated lacerated wound over the right leg lower 3[rd] with bones protruding out with gross deformity, heavily contaminated lacerated wound over right knee and multiple abrasion left leg and right forearm. Ext.A8 is the treatment certificate issued from M.A.C.A. Nos.439 & 2138 of 2012 8 S.P. Fort Hospital, Thiruvananthapuram. The diagnosis shows type III open fracture both bones right leg with segmental involvement and loss of bone. On 05.06.2006, ORIF Pubic symphycis, Wound debridement and nailing of right tibia. On 06.09.2006, free gracilis muscle flap cover done by plastic surgeon. Flap sloughed due to severe uncontrolled infection. BK Amputation was done on 07.09.2006 after removing implant. As infection extended upto knee, AK Amputation was done on 30.09.2006. Ext.A20 is the Disability Certificate issued by Medical Board, Taluk Hospital, Punalur. Ext.A20 shows 50% permanent disability above knee amputation right. The wound certificate shows that the injured suffers a permanent disability as a result of the injuries. 10. It is true that the assessment of compensation under various heads are to be assessed according to the nature of permanent disability. The impact of the permanent disability highly affected his earning capacity. Appellant stated that he was working as a Cashier cum Manager in a Petrol Bunk at Punalur. The employer was M.A.C.A. Nos.439 & 2138 of 2012 9 examined as PW1. Ext.A16 is the salary certificate issued from Joseph Sebastian and Company. The evidence of PW1 shows that the injured was getting an amount of Rs.6,500/- per month. Even though he was cross examined, nothing has been brought out to discredit the evidence of PW1 and the salary disbursed as per Ext.A16. The tribunal rightly took Rs.6,500/- as his monthly income. Apex Court in **Raj Kumar** (Supra) held that pecuniary damages and non pecuniary damages have to be assessed separately. Pecuniary damages relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenses have to be categorically analysed and properly considered by the Tribunal. Loss of earning during the period of treatment, loss of future earning on account of permanent disability and future medical expenses are also relevant factors while awarding pecuniary damages. Under the head nonpecuniary damages which is termed as general damages, the Tribunal has to consider the damages for pain and sufferings and the trauma as a consequence of the M.A.C.A. Nos.439 & 2138 of 2012 10 injuries. The loss of amenities and loss of expectation of life are also relevant factors. In routine personal injury cases, compensation will be awarded to the victims according to the nature of the above conditions. In this case, the disability affected his earning capacity. Permanent disability reduced the activity of some part of his body. Therefore, while considering the amount for permanent disability, his future prospects have also to be considered. ## 11. Apex Court in **National Insurance Company** v. **Pranay Sethi [2017 (4) KLT 622 (SC)]** issued certain guidelines in death case regarding the manner in which future prospects have to be considered, which reads 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. M.A.C.A. Nos.439 & 2138 of 2012 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 of estate, loss of consortium and funeral expenses M.A.C.A. Nos.439 & 2138 of 2012 12 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. 12. In case of Permanent Disability where there is loss of earning power and reduction in income, while determining the multiplicand an additional amount 40% as stated in Pranay Sethi (Supra) can be added to the income of the injured, where the injured is self employed or on a fixed salary where his age is below 40 years. “(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. ” The injured was aged 30 years at the time of accident and the multiplier is 17. Considering the compensation for Permanent Disability, 40% has to be taken in addition to the monthly income of Rs.6,500/-, hence the monthly income comes to Rs.9,100/- (6500+2,600) and the injured is entitled to get an amount of Rs.9,28,200/- M.A.C.A. Nos.439 & 2138 of 2012 13 (9100x12x17x50%). Tribunal awarded Rs.6,74,000/- on that head. The balance is Rs.2,54,200/-. 13. The injured had undergone four surgeries, but the learned Tribunal awarded Rs.28,000/- towards pain and sufferings. The Pain and sufferings suffered by the injured cannot be assessed in terms of money or anything. Since the injured had undergone four surgeries and one fourth of the leg is amputated, I hereby award an additional amount Rs.72,000/- towards pain and sufferings. In addition to that, an amount of Rs.6,000/- is awarded for Extra Nourishment, Rs.5,000/- is awarded for Bystander Expenses and Rs.5,000/- is awarded for Transport to Hospital. Learned counsel appearing for the insurer had a contention that excess amount was awarded by the Tribunal for Loss of Amenities and for the purchase of artificial limb. Considering the nature of injury, the injured is entitled to get future medical expenses but no separate amount is awarded on that head, but the amount awarded for Loss of Amenities can be adjusted with future medical expenses also and no M.A.C.A. Nos.439 & 2138 of 2012 14 reduction is necessary. The injured might have purchased artificial limb, therefore reduction of that amount is also not necessary. The total enhanced compensation is Rs.3,42,200/- (Rupees Three Lakh Forty Two Thousand Two Hundred only). 14. Hence, the appellant in M.A.C.A No.2138 of 2012 is entitled to get an enhanced compensation of Rs.3,42,200/- (Rupees Three Lakh Forty Two Thousand Two Hundred only) with 7.5% interest per annum from the date of petition till realisation with proportionate cost in addition to Rs.14,00,000/- (Rupees Fourteen Lakhs only) awarded by the learned Tribunal. 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.A. No.2138 of 2012 is allowed in part and M.A.C.A. No.439 of 2012 is dismissed accordingly. Sd/- NS **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge