Pramod Das v. Komalavally Vettath House, Shijith, and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** ## **M.A.C.A.No. 3396 of 2018** **AGAINST THE AWARD IN OPMV 2747/2007 of ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRICHUR DATED 21-12-2017** ## **APPELLANT/PETITIONER:** **PRAMOD DAS AGED 48 YEARS S/O RAMAKRISHNAN, KORATH HOUSE, KALLEPPULLY, KAVASSERY, PALAKKAD DISTICT** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** **1 KOMALAVALLY VETTATH HOUSE, KANDANASSERY, ARIYANNOOR VIA, THRISSUR DISTRICT - 680 102** **2 SHIJITH S/O. SANTHAGUPTHAN, VETTATH HOUSE, KANDANASSERY, THRISSUR DISTRICT – 680 102** **3 NATIONAL INSURANCE CO.LTD, THRISSUR – 680 001** **BY ADVS. SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 3396 of 2018** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)No.2747 of 2007 of Motor Accidents Claims Tribunal, Thrissur by the injured. Appellant sustained injuries in a motor accident and he preferred the above claim petition under Section 166 of the Motor Vehicles Act 1988 and the Motor Accidents Claims Tribunal awarded compensation of Rs.7,59,100/-. Being aggrieved by that, the injured preferred this appeal. 2. It would be relevant to refer the facts leading to this accident. On 29-12-2006 at 9.15.am appellant was riding a motor cycle KL-9-Q-2823 with a pillion rider from AlathurKazhani Chungam road, when he reached at near the Petrol pump another vehicle KL-8-AE-6732 driven in a rash and negligent manner hit against the motor cycle. As a result, the rider and pillion rider sustained serious injuries. Immediately they were removed to hospital. The driver and owner of the offending vehicle were set ex-parte. The insurer admitted the insurance of the vehicle. This case was tried along with OP(MV)No.2746 of 2007. The evidence consist of oral **M.A.C.A.No. 3396 of 2018** **3** testimony of PW1 to PW3 and documentary evidence of Ext.A1 to A25. Appellant contended that he sustained serious injuries in the above accident. He was working as a Marketing Executive at South Land India Limited, Palakkad and was getting Rs.10,000/- per month. He sustained 50% permanent disability and unable to do any work. The Motor Accidents Claims Tribunal reduced his income and took Rs.4,000/- for calculating disability compensation and just amount was not awarded. 3. 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 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_ **M.A.C.A.No. 3396 of 2018** **4** _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 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”._ **M.A.C.A.No. 3396 of 2018** **5** 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. Ext.A13 wound certificate shows that he sustained incised wound over nostrils left 9x2cm, incised wound over parietal area 8x3cm and tenderness right wrist and fracture radius and tenderness right thigh and fracture right femur as seen. Ext.A14 is the discharge summary and Ext.A15 is the discharge card. Ex.A15 shows that he was admitted on 29-12-2006 and discharged on 20-01-2007. According to Ext.A14 the petitioner was having fracture left radius, fracture left clavicle, fracture left frontal ban, fracture left occipital area, dislocation right hip, fracture left tibia and fracture left scapula. He has also communited fracture of acetabulam and right foot drop with sciatic nerve palsy, ORIF with plate distal end of left radius, **M.A.C.A.No. 3396 of 2018** **6** ORIF with cancellous screws left tibial plateau skeletal traction and foot drop splint were given to him. He had undergone surgery for the 2[nd] time during admission from 15-11-2007 to 17-11-2007. He was admitted for the 3[rd] time on 14-07-2008 to 23-07-2008 in the hospital for implant removal. He had undergone inpatient treatment for 40 days in total. Ext.A19 shows 45% disability assessed by Assistant Professor of Orthopedics of Government Medical College Hospital, Thrissur. The above injury shows that he sustained permanent disabilty 1. Surgical scar over the left knee, right ankle and left wrist, 2. Range of abduction (20 degree), flexion (100 degree), internal rotation (15 degree) of the right hip reduced that the left hip, 3. Range of flexion of the left knee (90 degree) grossly reduced than the right knee, 4. Range of sorsiflexion, plantar flexion of the right ankle decreased than the left ankle, 5. Four lateral toes on the right foot are non functional, 6. Deformity and stiffness of the left wrist with prominence of the ulnar styloid process, 7. Difficulty in climbing stair, squatting, sitting cross-legged, 8. Radiologically, malunited fracture left clavicle and malunited fracture distal end radius left, implants removed. The doctor who treated the injured was examined **M.A.C.A.No. 3396 of 2018** **7** as PW1 and PW3 is another doctor who treated the appellant. Both of them depose that the appellant sustained serious injuries in the accident. The respondetns have no dispute with regard to the disability disability certified by the Medical Board. Now he is sufering from neurological and orthopedics disability. 5. 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 **M.A.C.A.No. 3396 of 2018** **8** of evidence in that case. Appellant contended that he was working as a Marketing Executive and he was getting Rs.10,000/-. But no documents were produced in the lower court to prove the income and employment. In the absence of such evidence, the learned Tribunal took the income as Rs.4,000/- for calculating disability compensation. In view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ the income is fixed as Rs.8,000/-. For disability compensation is in view of _**National Insurance Company V.**_ _**Pranay Sethi [2017 (4) KLT 662 (SC)],**_ 40% has to be added towards future prospects. The income is 11,200/-. The disability compensation is Rs.11,200x12x15x50/100= Rs.10,08,000/-. The learned Tribunal awarded compensation of Rs.5,04,000/- and the balance amount is Rs.5,04,000/- , along with that Rs.50,000/- awarded towards pain and suffering, Rs.70,000/- awarded towards loss of amenities, Rs.25,000/awarded towards future treatment and Rs.40,000/- awarded towards loss of income. No interest was awarded towards future treatment. Therefore the appellants are entitled to get an enhanced compensation of Rs. 6,89,000/- (Rupees Six Lakhs Eighty Nine Thousand Only) with 9% interest and **M.A.C.A.No. 3396 of 2018** **9** proportionate cost in addition to the award amount. The insurer is directed to satisfy the award amount 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. This appeal is disposed of, as above. Sd/- **P.D.RAJAN** nak