National Insurance Company Limited v. P.D. Chacko

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940** **AGAINST THE AWARD IN OPMV 887/2013 of ADDL.M.A.C.T-I, KOTTAYAM** ## **APPELLANT/3RD RESPONDENT** **NATIONAL INSURANCE COMPANY LIMITED KOTTAYAM 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** **P.D.CHACKO W/O P.C. DANIEL, POTHANICKAL HOUSE, VADAVATHOOR PO, KOTTAYAM-686110** **R. BY ADV. SMT.INDU SUSAN JACOB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BNG** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 10[th] day of April, 2018 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.887/2013 of the Addl. Motor Accidents Claims Tribunal -I _,_ Kottayam by the insurer. The first respondent in this appeal sustained injuries in a motor accident and his right arm was amputated, for that the learned Tribunal awarded Rs.12,97,563/- as compensation. Being aggrieved by that, the insurer preferred this appeal. 2. The injured's case in the lower court is that on 29.09.2013 at 1.00 pm, he was driving KL-43C-7621 from Kovalam to Nedumbassery and reached at Chepad Junction, another vehicle KL-5AE-941 hit against his vehicle, as a result, he sustained serious injuries, immediately he was removed to hospital. The driver and owner of the offending vehicle were set ex-parte. The insurer admitted the insurance of the vehicle. The claimant was examined as PW1 _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 2_ and his documents were marked as Exts.A1 to A14. The insurer had no dispute with regard to the accident and the injuries. 3. The learned counsel appearing for the appellant contended that excess amount was awarded by the Tribunal while fixing compensation. The Medical Board assessed the permanent disability at the rate of 50%. However, the Tribunal had taken 85% of functional disability and awarded huge amount. Till the date of award, artificial limb was not purchased, but a sum of Rs.5,71,344/- was awarded on that head, that is to be reduced from the total award. 4. The learned counsel appearing for the first respondent submitted that the injured is fully disabled and unable to drive a vehicle as a driver. Even though, the Medical Board certified 50% disability as a driver, his disability is 100%. After award, he purchased the artificial limb spending the estimate amount of Rs.5,71,344/- and that amount is not deductable. The first respondent filed a cross objection I.A.No.19/2017 and contended that he is _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 3_ entitled to get enhanced rate of compensation at the rate of 100% functional disability. 5. In injury cases 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. 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 _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 4_ 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 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 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 _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 5_ 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 _**Raj Kumar v. Ajay Kumar**_ ## _**[2011(1) KLT 620 (SC)]**_ made following observation. _“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 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_ _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 6_ _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 permanent 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._ ## 8. Apex Court in _**S.Suresh v. Oriental Insurance Company Limited and Another (2010 KHC**_ ## _**2065)**_ held as follows: _“We are of the opinion that an account of amputation of his right leg below the knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even_ _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 7_ _getting a driving licence under the Motor Vehicles Act, 1988”._ ## 9. In another decision _**Rekha Jain v. National**_ ## _**Insurance Company Limited and Others ( 2013 (8)**_ ## _**SCC 389),**_ apex court held in para 60 that: _“60. We have already held that though the disability certificate speaks of the appellant's disability at 30%, on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on 4 to 5 kg weight, she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get a substantial sum for acting in films, TV serials, modelling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs.5,00,000, 50% of which is Rs.2,50,000 per annum which is multiplied by 17 as the proper multiplier considering her age at the_ _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 8_ _time of accident by applying the legal principle laid down by this Court in Sarla Verma v. DTC which amounts to Rs.42,50,000. Hence, we award Rs.42,50,000 compensation under the aforesaid head. The Tribunal awarded only Rs.2,00,000 which is enhanced to Rs.42,50,000 under the said head._ ## 10. In _**Ramachandrappa**_ v. _**The Manager,**_ ## _**Royal Sundaram Aliance Insurance Company Limited AIR 2011 Supreme Court 2951**_ it was held that: _Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:_ _(i) whether the disablement is permanent or temporary;_ _(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;_ _(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person._ _If the Tribunal concludes that there is no permanent disability_ _then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the_ _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 9_ _claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity”._ 11. In this case a driver sustained serious injuries and his right arm was amputated, the assessement of compensation for loss of future earnings would depend upon the percentage of permanent disability. Now the question is whether the disability incapacitated the cross objectioner from doing his work as a driver or capable of doing other work. The Tribunal examined that question and awarded 85% disability. Total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates a person for all work which he was capable of performing at the time of the accident resulting in such disablement. 12. The cross objectioner contended that he is a driver by profession and was getting Rs.20,000/- per month, but the learned tribunal took Rs.12,000/- as his monthly income. The court is bound to award just compensation and there is no straight jacket formula for assessing just compensation. The learned counsel _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 10_ appearing for the insurer contended that there is no total disablement. Total disablement means such disablement whether a temporary or permanent nature as incapacitated person for a work which he was capable of performing at the time of accident resulting in such disablement. In the first place, I may say that appellant has not disputed that the injury was of the nature causing a temporary disablement. Then the question to be considered is whether the disablement has incapacitated the cross objectioner from performing his duty as a driver. The Medical Board examined and assessed the disability at 50%. By loss of right hand, it is evident that he could not perform his work as a driver. The learned counsel appearing for the insurer submitted that there is no harm in doing any other work. What I am saying is that considering his age, he is not in a position to do other work as suggested by the appellant. Basically in view of the ratio settled in _**S. Suresh v. Oriental Insurance Company Limited and Another 2010 KHC 2065**_ and _**Rekha Jain**_ v. _**National Insurance Company Limited**_ _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 11_ _**and Others (2013) 8 Supreme Court Cases 389**_ , I can safely conclude that claimant is permanently disabled and, he has 100% future earning capacity as driver. 13. The claimant had undergone prolonged medical treatment and hospitalization and suffered a lot. Looking to the amount awarded by the Tribunal, I am of the view that the same is too less and, therefore, this Court is inclined to enhance the same. The learned tribunal awarded the following amounts as compensation. Transport to hospital Rs.2500/-, Damage to clothing Rs.750/-, Bystander Rs.1800/-, Extra nourishment Rs.5,000/-, Medical expenses Rs.8,209/-, Pain and sufferings Rs.25,000/-, Compensation for loss of earning Rs.36,000/-, Compensation for Loss of Amenities and dis figuration Rs.35,000/-, Permanent disability Rs.6,12,000/-, Future Treatment for fixing artificial limb Rs.5,71,304/-. The total compensation awarded by the tribunal is Rs.12,97,563/-. There is no contra evidence to reduce the monthly income from Rs.12,000/- to a lower level. Therefore the income taken by the Tribunal is just and _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 12_ reasonable, but in view of _**Sarla Verma**_ v. _**Delhi Transport Corporation 2010 (2) KLT 802 (SC),**_ the multiplier is 7. Hence the amount of compensation for permanent disability is Rs.10,08,000/- (12,000x12x7). The tribunal awarded Rs.6,12,000/- on that head and the balance is Rs.3,96,000/- (Rs.10,08,000-6,12,000). 14. Learned counsel appearing for the appellant submitted that Rs.5,71,304/- was awarded for purchasing artificial limb and that amount has to be deducted. The learned counsel appearing for the cross objectioner submitted that the injured had purchased the artificial limb after getting the award amount. On the basis of the argument advanced by the both counsel, on 12.03.2016 this court directed the injured to appear before this court with purchased artificial limb. He appeared before this Court and showed the artificial limb purchased by him on the basis of the proposed estimate. After the appearance of the injured, the appellant has no dispute about the purchase of the artificial limb and the _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 13_ award towards purchasing artificial limb is confirmed. At the same time another aspect is that the Cross Objectioner is not entitled to get interest for Rs.5,71,304/-, which was awarded for purchasing artificial limb. Considering the pain and sufferings, loss of income during treatment period, loss of future amenities, medical expenses and other discomfort, an additional amount of Rs.1,00,000/- (Rupees One Lakh only) is awarded as additional compensation. 15. Hence, the injured/cross objectioner is entitled to get an additional compensation of Rs.4,96,000/- (Rupees Four Lakh Ninety Six Thousand only) with 9% interest and proportionate cost in addition to the amount of Rs.12,97,563/- 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. There is no merit in this appeal and it is dismissed accordingly and the Cross _M.A.C.A No.3259 of 2015 & Cross Objection 90 of 2017 14_ Objection No.90 of 2017 is partly allowed. Sd/- **P.D.RAJAN JUDGE** bng/ns