PRADEEP KUMAR v. T. GANGA and THE NATIONAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 19[TH] DAY OF DECEMBER 2018 / 28[TH] AGRAHAYANA, 1940 MACA.NO. 1156 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.3607/2001 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 15-06-2007** ## **APPELLANT/PETITIONER :** **PRADEEP KUMAR, AGED 33 YEARS, S/O.SREEDHARAN, THATTARAKANDI HOUSE, POOZHI ROAD, WESTHILL CHUNGAM, WESTHILL POST, KOZHIKODE.** **BY ADVS. SRI.JIJI THOMAS PAMBACKAL SMT.SMITHA JIJI PAMBACKAL SRI.P.R.ASHOK KUMAR** ## **RESPONDENTS/RESPONDENTS :** **1 T.GANGA, W/O. BHASKARAN, 39/174, SAI KRIPA, BHATT ROAD, PUTHIYANGADI POST, KOZHIKODE-673001.** **2 THE NATIONAL INSURANCE CO.LTD., BRANCH OFFICE PARCO TOWER, P.M.TAJ ROAD, KOZHIKODE-673001.** **BY ADVS. SRI.RAJAN P.KALIYATH SRI. A.A.MOHAMMED NAZIR (BY ORDER)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 1156 OF 2015** **2** ## **JUDGMENT** This appeal is preferred against the award in O.P.(M.V.) No.3607 of 2001 of the Principal Motor Accidents Claims Tribunal, Kozhikode by the injured. Appellant sustained injuries in a motor accident and the Motor Accidents Claims Tribunal awarded compensation of Rs.29,300/- (Rupees Twenty Nine Thousand Three Hundred only) with 6% interest and cost. Being aggrieved by that, he preferred this appeal. 2. Claimant's case in the lower court was that on 12.06.2001 at 10.45 a.m., he was driving an auto rickshaw KL11/J-3062 at that time, a Maruthi car KL-11/C-8622 came in a rash and negligent manner and hit against the auto rickshaw, as a result he sustained serious injuries. The driver contested the matter by filing a written statement. The insurer admitted the insurance of the vehicle. Claimant was examined as PW1 and his documents were marked as Exts.A1 to A3. The disability certificate was marked as Ext.C1. Respondents evidence consist of documentary evidence of Exts.B1 and B2. 3. The injured is entitled to get higher amount of **MACA.NO. 1156 OF 2015** **3** compensation in permanent injury 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 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. The evidence of PW1 shows that he sustained fracture shaft of femur. Ext.A2 is the wound certificate which corroborates the evidence of PW1. 4. 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: _“ 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_ **MACA.NO. 1156 OF 2015** **4** _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 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_ **MACA.NO. 1156 OF 2015** **5** _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”._ 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. 5. Appellant sustained 3% permanent disability. In Ext.C1, it is certified that he is having terminal restriction of right limp flexion and restriction of internal rotation (terminal) of right hip. Left lower limb having post polio residual paralysis. As per MC Bride's Table, disability due to fracture to femur is assessed from 11% to 95% on various factors subject to deformity. In this **MACA.NO. 1156 OF 2015** **6** case, even after discussing various deformities, the Medical Board has not assessed the disability properly. 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 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. 6. It was contended that the appellant was an auto rickshaw driver and was getting Rs.6,000/- per month, but no **MACA.NO. 1156 OF 2015** **7** evidence has been adduced by him to prove the income, hence his monthly income is taken as Rs.4,000/- and the following amounts are awarded as enhanced compensation. |Sl.<br>No.|Head of claim|Amount<br>awarded|Amount<br>modified| |---|---|---|---| |1|Medical bills|1,500/-|-| |2|Hospitalization<br>and<br>incidental charges|1,500/-|-| |3|Pain and sufferings|15,000/-|25,000/-| |4|Disability|7,200/-|50,000/-| |5|Transportation|500/-|| |6|Loss of income|3,600/-|24,000/-<br>(4,000x6)| |7|Loss of amenities|-|25,000/-| |8|Extra nourishment|-|5,000/-| ||Total|**29,300/-**|**1,29,000/-**| The total enhanced compensation is Rs.1,29,000/- (Rupees One Lakh Twenty Nine Thousand only). Accordingly, the appellant is entitled to get an enhanced compensation of Rs.1,29,000/- (Rupees One Lakh Twenty Nine Thousand only) with 9% interest and proportionate cost in addition to Rs.29,300/- (Rupees Twenty Nine Thousand Three Hundred only) awarded by the learned Tribunal. 7. The insurer admitted the insurance of the vehicle, but contended that the driver of the vehicle was not holding a valid **MACA.NO. 1156 OF 2015** **8** driving licence and the learned Tribunal directed the insurer to pay compensation and reimburse the amount from the owner. No documents were produced before this Court to show that the driver was holding a valid driving licence. In the circumstance, the insurer is directed to satisfy the enhanced compensation within a period of thirty days from the date of receipt of a copy of this judgment and reimburse the amount from the owner of the vehicle. If the insurance company fails to pay compensation within the prescribed time, it will carry 12% interest from the date of default. M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge NS