Ramu v. Aliyar O.M. & Hareesh & The Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940** **MACA.NO. 1893 OF 2011** **AGAINST THE AWARD IN O.P.(M.V.) NO.2105/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 18-11-2010** **-------------------------** ## **APPELLANT(S)/PETITIONER :** **----------------------** **RAMU, AGED 35 YEARS, S/O.RAJAN, PUTHENVELI HOUSE, NOW RESIDING AT POOPARAMBIL QUARTERS, MULLURKKARA P.O., THRISSUR DISTRICT.** **BY ADVS.SRI. SANTHOSH P.PODUVAL SMT.R.RAJITHA** ## **RESPONDENT(S)/RESPONDENTS :** **------------------------** **1. ALIYAR O.M., S/O.MEETHIAN BAVA, VAZHUVELI HOUSE, 13/739, THOPPIL,THRIKKAKARA, KOCHI-682030.** **2. HAREESH,S/O.RAJAN, PULIYASSERY VEETTIL, THOPPIL, THRIKKAKARA, KOCHI-682030.** **3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, ANGAMALI, ERNAKULAM DISTRICT, PIN-683572.** **R3 BY ADVS. SRI.GEORGE CHERIYAN (THIRUVALLA)(B/O)(NO MEMO) SRI.TITUS MANI** **BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.1893 of 2011 ---------------------------------Dated this the 1[st] day of August, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P. (M.V.) No.2105 of 2003 of the Motor Accidents Claims Tribunal, Thrissur by the injured. Appellant sustained serious injuries in a motor accident on 26.4.2003 and the learned Tribunal awarded compensation of Rs.1,64,400/(Rupees One Lakh Sixty Four Thousand Four Hundred only) with 8% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal. 2. Respondent did not dispute the accident in the lower court. The driver and owner were ex parte and the insurer admitted the insurance of the vehicle. Claimant's case in the lower court was that, on 26.04.2003 at 2.00 p.m., while he was walking through the side of Thrissur- Ernakulam National High Way road and when he reached at the place of occurrence, a vehicle KL-7/AJ-3392 driven in a rash and negligent manner knocked down him, as a result, he sustained serious injuries, immediately he was removed to Elite M.A.C.A. No.1893 of 2011 2 Mission hospital, Thrissur. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A7. Copy of the policy was marked as Ext.B1. The Disability certificate was marked as Ext.C1. The learned Tribunal awarded the following amounts as compensation. Loss of earning Rs.10,000/-, Medical and Miscellaneous Expenses Rs.60,300/-, Bystander Personal Expenses Rs.3,000/-, Transportation expenses Rs.1,000/-, Extra nourishment Rs.2,000/-, Damage to clothing etc.Rs.500/-, Pain and suffering Rs.30,000/-, Disability Rs.57,600/-. The total is Rs.1,64,400/- (Rupees One Lakh Sixty Four Thousand Four Hundred only). 3. Learned counsel appearing for the appellant contended that the injured was a Fish Vendor and was getting Rs.6,000/- (Rupees Six Thousand Only) per month, but the learned Tribunal took only Rs.2,500/- for calculating disability compensation which is a meagre one. It is also contended that the appellant sustained 25% disability (both Orthopedic and Neurological disability), but the learned Tribunal, while awarding compensation M.A.C.A. No.1893 of 2011 3 took only 10% disability . 4. Learned counsel appearing for the respondent insurer contended that the driver of the offending vehicle was not holding a valid driving licence at the time of accident. 5. In permanent injury case, 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 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 ## M.A.C.A. No.1893 of 2011 4 ## 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 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.” 6. 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, ## M.A.C.A. No.1893 of 2011 5 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. 7. Appellant who was aged 35 years at the time of accident, was a fish vendor. Even though, he claimed Rs.6,000/- per month, no evidence has been adduced by him to prove the income. In view of the decision of the apex court in **Syed Sadiq and Others V. Divisional Manager, United India Insurance Company Limited** [ **(2014) 2 Supreme Court Cases 735],** his monthly income is taken as Rs.4,500/-. Along with that, 40% is to be added towards future prospects in view of **National** M.A.C.A. No.1893 of 2011 6 **Insurance Company** v. **Pranay Sethi [2017 (4) KLT 622 (SC)]** . Then the monthly income comes to Rs.6,300/(4500+1800). In view of **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1],** I take 25% as the disability. Hence, the disability compensation will be Rs.3,02,400/(6300x12x16x25%). The learned Tribunal awarded an amount of Rs.57,600/- on that head, the balance is Rs.2,44,800/-. Along with that, an additional amount of Rs.8,000/- is awarded towards Loss of income and an additional amount of Rs.25,000/- is awarded towards Loss of Amenities. The total enhanced compensation is Rs.2,77,800/- (Rupees Two Lakh Seventy Seven Thousand Eight Hundred only). Accordingly, the appellant is entitled to get an enhanced compensation of Rs.2,77,800/- (Rupees Two Lakh Seventy Seven Thousand Eight Hundred only) with 9% interest and proportionate cost in addition to Rs.1,64,400/- (Rupees One Lakh Sixty Four Thousand Four Hundred only) awarded by the learned Tribunal. Respondent contended that the driver of the vehicle was not holding a valid driving licence, M.A.C.A. No.1893 of 2011 7 hence the insurer is directed to satisfy the award and is at liberty to reimburse the amount from the owner of the vehicle as per law. This M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge