National Insurance Company Limited vs Prasanth A. Thampi (MACA No. 130 of 2013) and Cross Objection No. 161 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 09TH DAY OF JANUARY 2019 / 19TH POUSHA, 1940** **MACA.No. 130 of 2013** **AGAINST THE AWARD IN OPMV 929/2009 of MACT PALA DATED 10.08.2012** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE CO.LTD** **PALA REPRESENTED BY ITS MANAGER KOCHI REGIONAL OFFICE KOCHI** **BY ADV. SRI.A.A.MOHAMMED NAZIR** ## **RESPONDENT/PETITIONER:** **PRASANTH .A.THAMPI, S/O.ACHUTHAN THAMPI, ARACKAL PARAMBU HOUSE, VAIKOM NOW RESIDING AT PUTHOOR HOUSEM RAMAPURAM** **BY ADVS. SMT.KAVERY S THAMPI SRI.K.M.SATHYANATHA MENON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2019, ALONG WITH CO.161/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.130 of 2013 & CO.No.161 of 2018 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 09TH DAY OF JANUARY 2019 / 19TH POUSHA, 1940** **CO.No. 161 of 2018 IN MACA. 130/2013** ## **CROSS OBJECTOR/RESPONDENT:** **PRASANTH. A. THAMPI, AGED 31 YEARS S/O.ACHUTHAN .A.THAMPI, ARACKAL PARAMBU HOUSE, WEST GATE, VAIKOM** **BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** ## **RESPONDENT/APPELLANT / 3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED, PALA, REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, KOCHI - 682016** **BY ADV. SRI.A.A.MOHAMMED NAZIR** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2019, ALONG WITH MACA.130/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.130 of 2013 & CO.No.161 of 2018 3 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.929/2009 of the Motor Accidents Claims Tribunal, Pala by the insurer. One Prasanth sustained serious injuries in a motor accident and the learned Tribunal awarded Rs.187,785/- as compensation and directed the insurer to satisfy the award with interest and cost. Being aggrieved by that, the insurer preferred this appeal. 2. It would be relevant and useful to mention the facts leading to the accident. The injured was an auto mobile trainee at Indus Motors, Thevara. On 01.09.2008 at 3.30 pm, he was attending a vehicle, at that time the offending vehicle KL-36/7871 hit against him and sustained serious fractures. Immediately, he was removed to Medical Trust Hospital. The accident was due to the rash and negligent driving of its driver. The owner and driver were set ex-parte. The insurer admitted the insurance of the vehicle. The claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A8. Respondents did not adduce any evidence. MACA.No.130 of 2013 & CO.No.161 of 2018 4 3. The learned counsel appearing for the appellant contented that a copy of the medical bills were produced before the Tribunal and the original might have produced before the Indus Motors for getting medical benefits from the firm. When original is not produced, the illegality committed by the Tribunal has to be rectified. 4. 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. 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_ MACA.No.130 of 2013 & CO.No.161 of 2018 5 _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 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_ MACA.No.130 of 2013 & CO.No.161 of 2018 6 _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”._ 5. The injured filed a Cross Objection No.161/2018 and contented that just amount was not awarded by the Tribunal. The cross objector had sustained serious injuries and fractures due to the accident. He was treated as inpatient in the Medical Trust hospital for 14 days and he continued his treatment for more than 6 months. The tribunal failed to consider the fact that cross objector had undergone severe pain due to the serious nature of injuries and fracture and hence granted inadequate compensation under the head pain and suffering. Hence the Tribunal ought to have awarded more compensation under the head pain and suffering. 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 MACA.No.130 of 2013 & CO.No.161 of 2018 **==> picture [8 x 8] intentionally omitted <==** 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. 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. Cross objectioner was working as an automobile trainee at Indus Motors and was getting Rs.5,000/as his monthly income, but no evidence has been adduced in the lower court to prove the income. In the absence of evidence, the Motor Accident Claims Tribunal fixed Rs.4,000/as his monthly income. It is true that, he might have earned Rs.5,000/- or above monthly income, but without any reason the Tribunal reduced the amount. In view of _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd (2014 (2) SCC 735),**_ his income is taken as MACA.No.130 of 2013 & CO.No.161 of 2018 8 ## Rs.5,000/-. He sustained permanent disability of 20%. 7. The disability certificate, Ext.A7 shows that he has a permanent disability of 20%. But the Tribunal without any reason reduced the disability to 12%. Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ held 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 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 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_ MACA.No.130 of 2013 & CO.No.161 of 2018 9 _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._ The cross objector had continued his treatment for more than six months and frequently visited hospital in continuation of his treatment. He was not in a position to travel in a public transport and he could travel in a taxi and there is more than 35 K.M distance from his residence to the hospital. The Tribunal failed to consider this fact while awarding compensation under the head transportation expense. Hence the Tribunal ought to have awarded more compensation under the head transportation expense. The Tribunal failed to consider that a person is not only to be compensated for the physical injury, but also for the loss which the suffered as a result of such injury. The cross objector has to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries. Hence the Tribunal ought to have allowed MACA.No.130 of 2013 & CO.No.161 of 2018 **==> picture [16 x 8] intentionally omitted <==** enhanced compensation under the head of loss of amenities and loss of reduction of earning capacity. 8. It is true that the above disability reduced the earning capacity of the injured. If the Tribunal has any dispute with regard to the above disability and earning capacity, the duty of the Tribunal is to refer the injured to another Medical Board and ascertain the physical disability. Without referring the injured to another Medical Board, if the disability is reduced it is against the decision of apex court in _**Raj Kumar's**_ case (supra). Therefore the cross objectioner has a permanent disability of 20%. Having regard to the disability and income, the following amount is awarded as enhanced compensation. The disability compensation is Rs.5,000x12x18x20/100=Rs.2,16,000/-. The learned Tribunal awarded Rs.97,920/- and the balance amount is Rs.1,18,080/-. For loss of income for six months is Rs.30,000/-, the balance amount is Rs.15,000/-. For extra nourishment another Rs.1,000/-, pain and suffering additional Rs.7,000/-, loss of amenities another Rs.15,000/-. MACA.No.130 of 2013 & CO.No.161 of 2018 11 |Sl.<br>No|Head of claim|Amount<br>awarded by<br>Tribunal|Amount<br>modified by<br>this court| |---|---|---|---| |1|Loss of earning|15,000/-|15,000/-| |2|Transportation exp.|1,500/-|---| |3|Extra nourishment|500/-|1,000/-| |4|Damage to clothing etc|500/-|---| |5|Bystander Expenses|3,500/-|---| |6|Medical Expenses|37,865/-|---| |7|Pain and suffering|18,000/-|7,000/-| |8|Loss/reduction earning capacity|97,920/-|1,18,080/-| |9|Loss of amenities|13,000/-|15,000/-| ||**Total**|**1,87,785/-**|**1,56,080/-**| No evidence has been adduced in the lower court to show that the original bills were en-cashed by the cross objector. The employer was examined, the medical encashment records were not summoned before court. If that be the position, there is no merit in this appeal. The cross objectioner is entitled to get enhanced compensation of Rs.1,56,080/- (Rupees One Lakh Fifty Six Thousand and Eighty only) with 9% interest and proportionate cost. The insurer is directed to satisfy the award 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. There is no merit in the appeal filed by the insurer. Hence, M.A.C.A No.130/2013 is MACA.No.130 of 2013 & CO.No.161 of 2018 **==> picture [16 x 8] intentionally omitted <==** dismissed and Cross Objection No.161/2018 is allowed as above. Sd/- **P.D.RAJAN JUDGE** bng/14.01.19