National Insurance Company Limited v. Pradeep; National Insurance Company Limited v. Rajeesh; National Insurance Company Limited v. Santhosh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940** **M.A.C.A.No. 2233 of 2015** **AGAINST THE AWARD IN OPMV 570/2010 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 24-04-2015** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED KOLLAM NOW RPRESENTED 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:** **PRADEEP** **S/O PAPPU, MANAKKATTIL HOUSE, WEST KAADUNGALLUR PO, ALANGAD VILLAGE** **BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2018, ALONG WITH MACA.2234/2015, MACA.2238/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940** **M.A.C.A.No. 2234 of 2015** **AGAINST THE AWARD IN OPMV 571/2010 of ADDITIONAL MOTOR ACCIDENTS CLIAMS TRIBUNAL, NORTH PARAVUR DATED 24.04.2015** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED KOLLAM 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:** **RAJEESH S/O ARUMUGHAM, MANAKKATIL HOUSE, WEST KADUNGALLUR PO, ALANGAD VILLAGE PIN-683 520** **BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2018, ALONG WITH MACA.2238/2015, MACA.2233/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940** **M.A.C.A.No. 2238 of 2015** **AGAINST THE AWARD IN OPMV 584/2010 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED24.04.2015.** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED KLOLLAM NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, NORTH PARAVUR.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **SANTHOSH S/O. RAJAN, PANDERIYIL HOUSE, WEST KADUNGALLUR P.O., ALANGAD VILLAGE.** **BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2018, ALONG WITH MACA.2234/2015, MACA.2233/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** **4** ## **JUDGMENT** These appeals are preferred against the award in OP(MV)No.570/2010, OP(MV)No.571/2010 and OP(MV)No.584/2010 of Additional Motor Accidents Claims Tribunal, North Paravur by the insurer. The Motor Accidents Claims Tribunal awarded Compensation of Rs.6,38,000/in OP(MV)No.570/2015, Rs.10,15,000/- in OP(MV)No.571/2015 and Rs.7,78,000/- in OP(MV)No.584/2015 with 8% interest and proportionate cost and directed the insurer to satisfy the award. Being aggrieved by that, the insurer preferred this appeal. 2. It would be relevant useful to mention the facts leading to this accident. The claimant's case in the lower court was that on 23-10-2010 at 6.30.pm, the claimants in OP(MV)No.570/2010, OP(MV)No.571/2010, OP(MV)No.584/2010 and OP(MV)No.583/2010 were passengers in a car KL-42-C-2589, when they reached at Chavara, a tempo van KL-4-C-5131 driven in a rash and negligent manner from the opposite side hit against the car. As a result, the passengers in the car sustained serious injuries. Immediately they were removed to Rahim Memorial Hospital, Kollam. The accident was due to the rash and negligent driving of the tempo van. The owner and driver of the offending vehicle were ex-parte. Insurer admitted the insurance of the vehicle but disputed the liability. All **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** **5** the claim petitioners were tried jointly and evidence was recorded in OP(MV)No.570/2010. The claimants evidence consist of oral testimony of PW1 to PW3 and documents were marked as Ext. A1 to A23. Ext.X1 to Ext.X3 were also marked in the lower court. Respondents did not adduce any oral or documentary evidence. 3. The learned counsel appearing for the appellant contended that the accident was due to the rash and negligent driving of the car in which claimants were travelling. The amount awarded towards pain and suffering and loss of amenities were at a high range . Hence the award may be set aside. 4. The learned counsel appearing for the first respondent contended that the accident was not disputed in the lower court and no evidence has been adduced to rebut the evidence of the claimants. In the absence of such evidence, the final report submitted by the Chavara police is sufficient to prove the rash and negligent driving of the driver of the tempo van. Just amount was awarded by the tribunal and no interference is necessary. 5. In a motor accident claim case, injured has to adduce evidence to prove the rash and negligent act of the driver of the vehicle. Only when the rash and negligent act of the driver is proved, then only the liability of the tortfeasor arises. Negligence as a tort is the breach of a legal duty to take care which results in **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** **6** damage, undesired by defendant to the plaintiff. Thus the ingredients are (1) A legal duty on the part of one defendant towards plaintiff to exercise care in such conduct of the defendant as falls within the scope of the duty (2) Breach of that legal duty (3) Consequential damages to plaintiff. Therefore, negligence is pure mental inadvertence and it is nothing more than carelessness. Such carelessness may exist in any degree and varies directly with the risk to which other persons are exposed by the act in question. In this situation, the main question is what standard of care is required by law where duty to take care exists? The law does not demand the highest degree of care of which human nature is capable. The law demands a reasonable care in view of the extent and possibility of the risk. Therefore, the standard of care established by the law is that of a reasonable man in identical circumstance. What amounts to reasonable care is a question of fact depending on the circumstance of each case. While in determining the standard of care, the magnitude of the risk to which other persons are exposed and the importance of the object to be attained by the dangerous form of activity are relevant. 6. Claimants are entitled to get compensation only if the rash and negligent driving of the offending vehicle is proved before tribunal. To prove the rash and negligent driving, the claimant in **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** **7** OP(MV)No.571/2015 was examined as PW1. PW2 is the claimant in OP(MV)No.570/2010 and PW3 is the claimant In OP(MV)NO.584/2010. The evidence of PW1 shows that, the accident was due to the rash and negligent driving of the tempo van KL-4-C-5131. With regard to the accident, Chavara police registered the crime and submitted Ext.A1. final report after investigation. Ext.A2 scene mahazer prepared by the investigating officer. Ext. A3, A6 and A18 are wound certificates. Ext.A4, A7, A13, A14, A15, A19 are the discharge summaries. Ext.X, X1, X2 and Ext.X3 are disability certificates issued from Medical College Hospital, Kottayam. PW2 and PW3 supported the evidence of PW1 and stated that the accident was due to the rash and negligent driving of the tempo van. A perusal of final report shows that the driver of the tempo van was charge sheeted and the case is pending before Judicial First Class Magistrate, Karunagappally. Even though the appellant contended that the accident was not due to he rash and negligent driving, no evidence has been adduced to substantiate that contention. If that be the position, no interference is necessary with regard to the finding of rash and negligent driving of the tempo van by its driver and that contention is rejected. 7. Apex Court in _**Yadava Kumar**_ v. _**D.M. National**_ **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** **8** _**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)._ _19. This Court also held that in the determination of the_ **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** **9** _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”._ 8. 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, **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** **10** 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. 9. It is true that, the pain and suffering suffered by the injured cannot be assessed in terms of money. There may be variations in such sufferings. The learned counsel appearing for the appellant submitted that the amount awarded towards pain and suffering and loss of amenities are disproportionate to the disability. I have gone through Exts.X1, X2 and X3 certificates issued from Medical College Hospital, Kottayam. 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 **11** ## **M.A.C.A.Nos.2233/2015, 2234/2015, 2238/2015** consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. Considering the nature of injury to each person, I am of the view that the just amount awarded towards pain and suffering, loss of amenities and for permanent disability. There is no illegality in the above findings . There is no merit, in these appeals and all appeals are dismissed accordingly. Sd/- **P.D.RAJAN,** nak **JUDGE**