Rajesh P. v. Sanoop G.P. and Prajosh T.P. and Branch Manager, National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940** ## **M.A.C.A.No. 3746 of 2016** **AGAINST THE AWARD IN OPMV 240/2015 of ADDTIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 04-05-2016** ## **APPELLANT/PETITIONER:** **RAJESH .P. AGED 29 YEARS S/O.JOHN, VATTEKKATTU HOUSE, THONIKKADTHAZHE NILAM KOLATHARA P.O., KOZHIKODE 673 655.** **BY ADVS. SRI.T.G.SUNIL (PERUMBAVOOR) SRI.AJITH GEORGE SRI.ANTONY SHYJU** ## **RESPONDENTS/RESPONDENTS:** **1 SANOOP G.P. S/O.SASHIDHARAN, AGE NOT KNOWN, PATHIYERIKANDI PARAMBU, ARAKKINAR P.O., BEYPORE, KOZHIKODE 673 028.** **2 PRAJOSH T.P S/O.CHANDRAN, AGGED 28 YEARS, THAZHATHE PURAKKAL, ARAKKINAR P.O., MARAD BEACH, NEAR PRIYA HOTEL, KOZHIKODE 673 028.** **3 THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD, DO:II, NOOR COMPLEX, NEAR ARAYEDATHUPALAM, MAVOOR ROAD, KOZHIKODE - 673 004.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 3746 of 2016** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)No.240/2015 of the Motor Accidents Claims Tribunal, Kozhikode. The appellant sustained injuries in a motor accident and the Motor Accidents Claims Tribunal awarded compensation of Rs. 8,11,279/-. Being aggrieved by that, the injured preferred this appeal. 2. The claimants case in the lower court was that on 16-06-2014 at 8.30.pm, he was riding a motor cycle KL-11-Y4038 from Kolathara to Modern Junction, when he reached at the place of occurrence, another motor cycle KL-11-AR-5099 driven in a rash and negligent manner hit against the petitioner's vehicle. As a result, he was thrown away and sustained serious injuries. Immediately, he was removed to hospital. In the lower court, the driver and owner contended that the accident was due to the rash and negligent driving of the appellant alone. Insurer admitted the insurance of the offending vehicle. 3 _._ Apex Court in _**Yadava Kumar**_ v. _**D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567)**_ reiterated the **M.A.C.A.No. 3746 of 2016** **3** ## 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 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_ **M.A.C.A.No. 3746 of 2016** **4** _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”._ 4. The learned counsel appearing for the appellant contended that the injured is a driver and sustained serious injuries in the accident. Now he is disabled and unable to do any work and living in vegetable state. Petitioner's evidence consist of documentary evidence of Exts. A1 to A8. The disability certificate was marked as Ext .C1. Considering the pathetic situation of the appellant, this court directed the Medical board, Government Medical College Hospital, Calicut to assess the disability. Accordingly, they assessed the disability and issued a certificate, which is marked as Ext.C2. Now, the present disability is 78% and he is entitled to get just compensation. 5. The computation of compensation in permanent **M.A.C.A.No. 3746 of 2016** **5** disability case would differ from person to person according to the nature of injury. . There can be no uniform standard and yardstick provided for assessing just compensation in injury cases. When several persons sustain similar injury, that can attract the same compensation, but the heads under which, compensation can be attributed are truly incredible. The intensity 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, because of the reason 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. 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 **M.A.C.A.No. 3746 of 2016** **6** have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. 6. There is no dispute about the injuries in Ext.A2 wound certificate. Ext.A6 scan report, shows head injury, Intraparenchymal hematoma noted in posterolateral aspect of pons with extension to fourth, third and right lateral ventricles. Intraparenchymal hematoma noted in left temporal lobe. Subarachnoid hemorrhage in left temporal. This court on 0507-2018 referred the appellant to Medical Board, Medical College Hospital, Calicut. The chairman, the medical board certified 78% of permanent disability. The insurer has no dispute with regard to the above disability. The fresh evaluation of the disability shows that he is permanently disabled. Even though, the disability is 78% certified by the Medical Board there is no harm in taking it as 100% in view of the decision of apex court in _**S.Suresh Vs. Oriental Insurance Company Ltd. and Another (JT 2009 14 SC 359).**_ 7. Appellant is a heavy vehicle driver. There is no illegality in taking 78% as 100%. He claimed that he was getting Rs.20,000/- per month but no evidence has been **M.A.C.A.No. 3746 of 2016** **7** adduced in the Court below to prove the income. The learned tribunal took Rs.7,000/- for calculating disability compensation. No contra evidence has been adduced by the respondent in the lower court to disprove the income of the appellant. In such a situation as a heavy vehicle driver the income is taken as Rs.9,000/- per month. In view of Pranay sethi, 40% is to be added towards future prospects i.e., Rs.3,600/-. The monthly income including future prospects is Rs.12,600/-. Ext.A4 driving license shows his date of birth as 21.04.1981. The appellant was aged 33 years at the time of accident and the multiplier is 16. Therefore the disability compensation is Rs.12,600X12X16=Rs.24,19,200/-. The learned Tribunal awarded Rs.5,37,600/- and the balance amount is Rs.18,81,600/-. Along with that, another Rs.1,00,000/- towards loss of amenities, Rs.1,00,000/- towards pain and suffering, Rs.1,00,000/- towards future treatment and Rs.25,000/towards extra nourishment are awarded. The appellant is entitled to get enhanced compensation of Rs.22,06,600/(Rupees Twenty Two Lakhs Six Thousand and Six Hundred only) with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the award **M.A.C.A.No. 3746 of 2016** **8** 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 **JUDGE**