National Insurance Company Ltd v. Swarun Sebastian

**WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940** **MACA.No. 3957 of 2016 --------------------OP(MV) 445/2015 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE -------------** **APPELLANT(S)/3RD RESPONDENT IN OP(MV)NO.445/2015** **-------------------------------------------------** **NATIONAL INSURANCE COMPANY LTD, 4TH FLOOR, PARCO TOWERS, P.M.TAJ ROAD, KOZHIKODE, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD,ERNAKULAM** **BY ADV.SRI.LAL GEORGE** **RESPONDENT(S)/PETITIONER/IN O.P(MV)NO.445/2015:** **-----------------------------------------------** **SWARUN SEBASTIAN, S/O.SEBASTIAN, AGED 23 YEARS, RESIDING AT PURATHEMUTHUKATTIL HOUSE, P.O.PERIMBADARI, MANNARKKAD, PALAKKAD -678583** **BY ADV.SMT.K.V.RESHMI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V. 02.08.2018** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.3957 of 2016 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 4[th] day of July, 2018 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.445/2015 of the Principal Motor Accidents Claims Tribunal, Kozhikode by the insurer. The first respondent in this appeal sustained injuries in a motor accident on 19.11.2014 at 7.45 am and the learned Tribunal awarded compensation of Rs.31,05,700/- with 9% interest and proportionate cost. Being aggrieved by that award, the insurer preferred this appeal. 2. In the lower court, the claimant's case was that on 19.11.2014 at 7.45 am, he was riding a motor cycle KL 50 C 8431 from Devagiri College hostel to Mavoor Higher Secondary School, when he reached near the petrol pump at Valliparambu, another motor vehicle KL-11-AN-6110 driven in a rash and negligent manner while overtaking a jeep hit against the appellant's motor cycle, as a result he sustained serious injuries. Immediately, he was removed to MIMS Hospital, Kozhikode and thereafter to Ganga Medical Centre & Hospital Pvt. Ltd, Coimbatore. The driver and owner were ## **M.A.C.A No.3957 of 2016** **-2-** 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 A11. The disability certificate was marked as Ext.C1. The learned Tribunal awarded following amount as compensation. |1. Transport to hospital|Rs.19,010/-| |---|---| |2. Loss of income|Rs.1,08,000/-| |3. Hospitalization for days as per A8 series|Rs.47,200/-| |4. Medical Bills as per A5 series|Rs.5,81,957/-| |5. Future treatment|Rs.2,00,000/-| |6. Pain and sufferings|Rs.30,000/-| |7. Loss of amenities|Rs.20,000/-| |8. Compensation for loss of income due to|| |72% disability as per C1 with loss in future|| |prospects at 50%|Rs.20,99,520/-| |**Total**|**Rs.31,05,687/-**| 3. The learned counsel appearing for the appellant insurer contended that the injured was a M.com student of Devagiri College at the time of accident and his income taken for calculating compensation was at higher side. He is the only earning person and lesser amount is to be considered as a multiplicand. Moreover, 50% taken along with the income is also unsustainable in law. The amount awarded towards **M.A.C.A No.3957 of 2016** **-3-** future treatment is also at higher side. 4. The learned counsel appearing for the injured filed a Cross Objection No.28/2017 and contended that the injured is entitled to get just amount as compensation. The disability was assessed in the year 2017 by the same Medical Board and it was reported as 70% disability. As per Ext.C1, the appellant has permanent disability of 72% and unable to do any work. He was engaged at that time as a Skill Development Executive in Higher Educational Department and was getting Rs.15,000/- per month, but the learned Tribunal took Rs.9,000/- as the monthly income, which is very low. ## _5._ 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_ ## **M.A.C.A No.3957 of 2016** **-4-** _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 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._ 6. 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 ## **M.A.C.A No.3957 of 2016** **-5-** 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 nonpecuniary 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 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_ **-6-** ## **M.A.C.A No.3957 of 2016** _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.”_ 7. 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 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. 8. It is admitted fact that the cross objectioner/injured was a student of Devagiri College and doing his M.com ## **M.A.C.A No.3957 of 2016** **-7-** decree. Now he is fully bed ridden and living in a vegetable state. The victim is a brilliant student studying in M.com and suffering from 72% disability as per Ext.C1 and 70% disability as per the disability certificate issued in the year 2017. He is entitled to get just amount as compensation. He was 23 years at the time of the accident. A new certificate was issued by the Disability Assessment Board, Palakkad. The Doctors of the District Hospital, psychiatric, orthopedic, ophthalmologist, ENT and Physiatrist were the members. No contra evidence has been adduced by the insurer to rebut the above evidence. Hence, considering the fact that appellant was a brilliant student and having good career prospects, the notional income of Rs.10,000/- can be taken for determining his future prospects. Apex court in _**V. Mekala v. M. Malathi and another (2014 (11) SCC 178)**_ discussed the principle of a just compensation in permanent disability cases, where the victim was a brilliant student. In that case, the victim was aged 16 years and having permanent disability of 70%, apex court fixed Rs.10,000/- as the notional monthly income for computing just and reasonable compensation under the head **-8-** ## **M.A.C.A No.3957 of 2016** of loss of income. Here, the injured is a graduate and doing his post-graduation, therefore, considering the future prospects and his career, it is just and reasonable to take the monthly income of Rs.12,000/-. ## 9. In _**Mekala's**_ case (supra) it was held as follows: _"The High Court on the basis of medical evidence on record with reference to the fractures sustained by the appellant to both the legs, rightly arrived at the conclusion that she had suffered 70% permanent disablement and therefore she was awarded the compensation under the head of loss of earning in the impugned judgment taking into account monthly notional income of Rs.6000 in the absence of any document on record as she was a student. This assumption of the courts below is on the lower side. Since the appellant was a brilliant student, she woud have had a better future in terms of educational career and she could have got suitable public or private employment but on account of permanent disablement she suffered due to injuries sustained by her in the accident, that opportunity is lost to her and therefore, she is entitled to higher compensation. Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurence of the accident, the same has to be taken into account by the courts while awarding compensation."_ In the above decision, apex court relied on the decision reported in _R.D Hattangadi v. Pest Control (India) (P) Ltd.,_ ## **M.A.C.A No.3957 of 2016** **-9-** _(1995) 1 SCC 551: 1995 SCC (Cri) 250; Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683: (2012) 3 SCC (Civ) 1082: (2012) 1 SCC (Cri) 82: (2012) 1 SCC (L&S) 422; Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343: (2011) 1 SCC (Civ) 164: (2011) 1 SCC (Cri) 1161; Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422: (2009) 5 SCC (Civ) 143: (2010) 1 SCC (Cri) 1044, followed Ward v. James, (1966) 1 QB 273: (1965) 2 WLR 455: (1965) 1 All ER 563 (CA); Oriental Insurance Co. Ltd. v. Jashuben, (2008) 4 SCC 162: (2008) 2 SCC (Cri) 752, cited._ 10. Considering the nature of the injury and present disability of 70%, he is entitled to get just amount as compensation. In view of _**Mekla case (supra)**_ , 50% of future prospects was added to the notional monthly income and the monthly income is Rs.12,000+6,000=Rs.18,000/-. If that be the position, the total disability compensation is Rs.18,000x12x18x70/100=Rs.27,21,600/-. The learned Tribunal awarded Rs.20,99,520/- and the balance amount is Rs.6,22,080/-. Along with that, additional Rs.2,00,000/- is awarded towards future treatment, Rs.70,000/- towards pain ## **M.A.C.A No.3957 of 2016** **-10-** and suffering, Rs.80,000/- towards loss of amenities and Rs.1,00,000/- towards future bystander expense. The total enhanced compensation is Rs.10,72,080/-. In addition to the award amount, the appellant is entitled to get enhanced compensation of Rs.10,72,080/- (Rupees Ten Lakhs Seventy Two 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 justification in the averment in M.A.C.A No.3957/2016 and it is dismissed and the Cross Obejction No.28/2017 is partly allowed. Hence this appeal and cross objection are disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng