Reliance General Insurance Co. Ltd. v. Sijo Joseph

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 29TH DAY OF JUNE 2018 / 8TH ASHADHA, 1940** **MACA.No. 2850 of 2015** **---------------------** **OP(MV) NO.809/2013 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-1, KOTTAYAM ---------** **APPELLANT/3RD RESPONDENT** **------------------------** **RELIANCE GENERAL INSURANCE CO.LTD, KOTTAYAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM.** **BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI** **SMT.LATHA SUSAN CHERIAN** **RESPONDENT/CLAIMANT:** **--------------------** **SIJO JOSEPH, S/O.JOSEPH (JOSE),NECHIKUNNEL HOUSE, MONIPPALLY KARA,MONIPPALLY VILLAGE, KOTTAYAM DISTRICT-680 001.** **BY ADV.SRI.MATHEW PHILIP EDAPPALLIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2018,ALONG WITH MACA NO.3745/2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **25.07.2018** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A Nos.2850 of 2015 & 3745 of 2016 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 29[th] day of June, 2018 ## **JUDGMENT** These appeals are preferred against the award in OP(MV) No.809/2013 of the Addl. Motor Accidents Claims Tribunal-I, Kottayam. M.A.C.A No.2850/2015 was preferred by the insurer and M.A.C.A.No.3745/2016 was preferred by the injured. On 08.03.2013 at 3.00 pm, the claimant was riding in a motor cycle through the M.C road and when he reached at Vattakuzhy, a tipper lorry KL64/6532 came in a rash and negligent manner and hit against the motor cycle, as a result he sustained serious injuries. Immediately he was removed to hospital. 2. The owner of the vehicle was ex-parte. The driver contended that the accident was not due to his negligence. The insurer admitted the insurance of the vehicle. The claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A7. 3. The learned counsel appearing for the appellant in M.A.C.A No.3745/2016 contended that the ## **M.A.C.A Nos.2850 of 2015 & 3745 of 2016** **-2-** injured is working in a hotel and was gettting Rs.12,500/per month. The learned Tribunal reduced the income to Rs.6,000/-, which is illegal. The appellant's right leg was amputated and the Medical Board certified 50% disability. Ignoring the disability certificate, the learned Tribunal fixed the disability at 40% and just amount was not awarded by the Tribunal. No amount was awarded towards future medical treatment. 4. The learned counsel appearing for the appellant in M.A.C.A No.2850/2015 contended that huge amount was taken as monthly salary. 50% was considered towards future prospects. It is against the decision of the apex court in _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)].**_ There is a duplication in disability compensation. 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: **M.A.C.A Nos.2850 of 2015 & 3745 of 2016** **==> picture [20 x 10] intentionally omitted <==** “ 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 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 ## **M.A.C.A Nos.2850 of 2015 & 3745 of 2016** **-4-** 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. Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ held as follows: _“where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be_ ## **M.A.C.A Nos.2850 of 2015 & 3745 of 2016** **==> picture [20 x 10] intentionally omitted <==** _different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation._ 8. The facts and circumstances in this case shows that the injured is permanently disabled and Ext.A5 ## **M.A.C.A Nos.2850 of 2015 & 3745 of 2016** **-6-** shows 50% permanent disability. Apex court in _**Raj Kumar (supra)**_ held that without any medical evidence the disability cannot be reduced to a lower level. Therefore, the disability 50% certified by the Doctor has to be taken as the disability for calculating disability compensation. 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 have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. 9. The injured is working as a waiter in a hotel. Ext.A6 is the salary certificate, it shows Rs.12,500/as the monthly income. Without any evidence, the learned ## **M.A.C.A Nos.2850 of 2015 & 3745 of 2016** **-7-** Tribunal reduced to Rs.6,000/-. In view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057),**_ the reduction is unsustainable in law, hence I take Rs.8,000/as the monthly income. In addition to that, 40% is added towards future prospects. If that be the position, the total monthly income is Rs.11,200/-. The injured was 31 years at the time of accident and multiplier is 16. The disability compensation is Rs.11,200x12x16x50/100= Rs.10,75,200/-. The learned Tribunal awarded Rs.6,91,200/-. The balance amount is Rs.3,84,000/-. In addition to that, Rs.15,000/- is awarded towards extra nourishment. There is a duplication in awarding Rs.2,00,000/- towards earning capacity and Rs.50,000/- for future treatment. The appellant produced Annxure A1 certificate from M/s. Otto Bcok Healthcare India Pvt. Ltd and the value of artificial limb is Rs.1,80,000/-. Every 5 to 7 years, the above artificial limb has to be changed. Accepting Annexure A1, Rs.2,00,000/- is adjusted towards fixing artificial limb. Rs.50,000/- is to be reduced from the ## **M.A.C.A Nos.2850 of 2015 & 3745 of 2016** **-8-** award amount. Loss of income for eight months at the rate of Rs.8,000/- is Rs.64,000/-. The learned Tribunal awarded Rs.48,000/-. The balance is Rs.16,000/-. The total additional compensation is Rs.3,65,000/(Rs.3,84,000+15,000+16,000-50,000). Hence, in addition to the award amount, the appellant is entitled to get Rs.3,65,000/- (Rupees Three Lakhs Sixy Five Thousand only) with 9% interest and proportionate cost. The insurer is directed to satisfy the award 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. In view of the above said discussion, M.A.C.A No.2850/2015 and M.A.C.A No.3745/2016 are partly allowed and disposed of as above. Sd/- **P.D.RAJAN JUDGE** bng