Ramesh and Rajesh v. Mani

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D. RAJAN** **MONDAY, THE 18TH DAY OF JUNE 2018 / 28TH JYAISHTA, 1940** **MACA.No. 839 of 2015** **AGAINST THE AWARD IN OPMV 649/2008 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 29-11-2014** ## **APPELLANT(S)/ RESPONDENTS 1 & 2:** **1 RAMESH, AGED 51 YEARS, S/O.RADHA, 4/102, KUZHALMANNAM, PALAKKAD.** **2 RAJESH, AGE NOT KNOWN, S/O.VASUDEVAN, MATTUKKAD, KUZHALMANNAM, PALAKKAD.** **BY ADVS.SRI.JACOB SEBASTIAN SMT.ANU JACOB SRI.T.U.SUJITH KUMAR SMT.SHAMSEERA. C.ASHRAF** ## **RESPONDENT(S)/PETITIONER:** **MANI, S/O.VASUDEVAN, AGED 57 YEARS, KALARIKKAL VEEDU, THIRUNELLAYI, PALAKKAD PIN - 678 005.** **R BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.R.JAIKRISHNA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RVS. 26/07/2018.** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.839 of 2015 ---------------------------------Dated this the 18[th] day of June, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.649 of 2008 of the Motor Accidents Claims Tribunal, Palakkad by the owner of the vehicle. On 05.05.2007 at 5.45 p.m., the 1[st] respondent in this appeal was walking along the side of the road Padalodenmedu at that time, a motorcycle KL-09/M-1701 driven in a rash and negligent manner knocked down him, as a result he sustained serious injuries and immediately he was removed to hospital. After discharging from the hospital, he was paralyzed and bed ridden. The learned Tribunal awarded Rs.3,49,850/- (Rupees Three Lakh Forty Nine Thousand Eight Hundred and Fifty only) with interest and cost as compensation and directed the owner to pay the award amount. Being aggrieved by that, the owner of the vehicle preferred this appeal. 2. In the lower court, driver and owner of the vehicle contended that the injured was walking along the middle of the road by pushing a bicycle. The claimant was ## M.A.C.A. No.839 of 2015 2 in an inebriated condition and fell down on the middle of the road, thereby the motorcycle hit on him and he sustained injuries. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A13(aq). Respondent's document was marked as Ext.B1. 3. Learned counsel appearing for the appellants contended that there was no negligence from the side of the rider of the motorcycle and the accident was due to the negligence of the injured himself. The wound certificate issued by the Doctor shows that the injured had the smell of alcohol at the time of examination. Moreover, in the Criminal case accused was acquitted after trial. The rider of the motorcycle was not holding a valid driving licence is not a ground to fasten liability upon the appellant. 4. While adverting to the first argument, it is now well settled that the judgment of acquittal in a Criminal Court is not conclusive in a claim petition before Tribunal. It is open to the claimants to adduce evidence to prove that the accident had occurred as a result of the ## M.A.C.A. No.839 of 2015 3 rash and negligent driving of the driver of the bus. The judgment of a Criminal Court as to the driver having been punished for rashness and negligent driving, may be used only for the limited purpose of showing that the accident had taken place. Therefore, the evidence recorded in criminal case may not be used for appreciating the proceedings in the Motor Accidents Claims Tribunal, but witnesses support the claimants' case and give statements before the Tribunal, that itself is a proof for the involvement of tortfeasor(s) in the commission of the crime. Even though the driver and owner of the vehicle contended that there was no negligence and the accident was due to the negligence of the injured, that fact was not proved in the trial court. ## 5. 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 ## M.A.C.A. No.839 of 2015 4 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 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.” In permanent injury cases, the injured is entitled to get higher income than that in death 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 non-pecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into ## M.A.C.A. No.839 of 2015 5 consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. 6. Likewise, 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. M.A.C.A. No.839 of 2015 6 7. However, the injured in this case sustained Cervical Spine injury C4-C7 cord contusion, quadriparesis, diffuse bulge C4-C5, C5-C6 and C6-C7. He was hospitalized for six days, which is clear from Exts.A5 and A6 documents. He had also spent huge amount for medical treatment. There was also spondylotic changes in the spine and the discharge summary Ext.A9 is supporting the claim of the 1[st] respondent in this appeal. Ext.A7 charge sheet shows that the rider of the motorcycle was charge sheeted by the Police. Now the question is whether the judgment of acquittal in a criminal case can be taken for deciding the question of negligence and it throws light upon the question whether the accident took place as claimed by the driver. The conviction is admissible prima facie evidence of negligence. However, acquittal in a criminal case is not to be taken as a prima facie evidence of non negligence. High Court of Karnataka in **Vinobabai** v. **K.S.R.T.C, 1979 ACJ 282: (1979) 1 Karn. LJ 257 (DB)** held that the driver's conviction for rash and negligent accident, is ## M.A.C.A. No.839 of 2015 7 admissible prima facie evidence of culpable negligence before the Tribunal, however acquittal by a Criminal Court does not establish even prima facie the driver's innocence as a much higher degree of culpability is required in criminal trials. If that be the position, mere acquittal or discharge of the accused in criminal case would have no bearing on the fact that the driver was not rash and negligent for the accident and the owner cannot get any exoneration on the basis of acquittal. If that be the position, the finding by the tribunal with regard to the negligence is confirmed. 8. Apex Court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** held that the injured is entitled to get just amount of compensation which reads as follows: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the M.A.C.A. No.839 of 2015 8 basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 9. Learned counsel appearing for the claimant/1[st] respondent had earlier submitted that the injured is fully bedridden and unable to do any work. It is true that he sustained serious injuries to spine. In the light of the above submission, this Court referred the claimant to Medical Board, Palakkad for assessing the disability. The District Medical Board reported that there was no Neuro Surgeon available there and they, with the help of the Doctors from Medical College Hospital, Thrissur assessed the disability of the injured as 72%. If that be the position, a fresh finding with regard to ## M.A.C.A. No.839 of 2015 9 disability is necessary in this appeal. In the circumstance, the award of the Motor Accidents Claims Tribunal, Palakkad is set aside and the matter is remitted to the Tribunal for fresh consideration. Both parties are directed to appear before the Tribunal on 02.08.2018 and they are at liberty to contest the matter as per law. The learned tribunal shall consider the disability certificate issued by the Medical Board and dispose of the matter within two months from the date of appearance of the parties. The amount, if any, deposited shall be adjusted with the final award of the Tribunal. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge NS