Renjith @ Vishnu vs Nishad, Jayachandran, The New India Assurance Co. Ltd, Bipin K.G, Abi A.P, The National Insurance Co. Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** ## **MACA.No. 460 of 2017** **AGAINST THE AWARD IN OPMV 1990/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** **RENJITH @ VISHNU AGED 20 YEARS, S/O. SATHYAN, THADATHIL HOUSE,KANJIRAMATTOM P.O, AMBALLOOR VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.T.K.SANDEEP** ## **RESPONDENTS/RESPONDENTS:** **1 NISHAD, S/O. ABDUL RAHIMAN, THADATHILPARAMBIL(H), KULAYITTIKKARA P.O, AMBALLOOR VILLAGE, ERNAKULAM, PIN - 682 315. 2 JAYACHANDRAN, 353/2, THIRUMALAYIKKAKATHAZHE HOUSE,EDAKKATTUVAYAL P.O, ERNAKULAM, PIN - 682 313. 3 THE NEW INDIA ASSURANCE CO. LTD KOTTACKAL ARYA VAIDYASALA BUILDING, M.G. ROAD, ERNAKULAM - 16 4 BIPIN K.G, KORAKKATTIL HOUSE, KANJIRAMATTOM, AMBALLOOR,KANAYANNOOR TALUK, ERNAKULAM, PIN - 682 315.** - **5 ABI A.P, 3/86, AINIKKARA HOUSE, KANJIRAMATTOM P.O AMBALLOOR VILLAGE, ERNAKULAM, PIN - 682 315.** - **6 THE NATIONAL INSURANCE CO LTD PALARIVATTOM, KOCHI - 682 025.** **BY ADVS. SMT.DEEPA GEORGE SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 460 of 2017 2 ## **JUDGMENT** This appeal is preferred against award in OP(MV) No.1990/2009 of the Motor Accidents Claims Tribunal, Ernakulam by the injured. The appellant sustained injuries in a motor accident, who filed a petition under Section 166 of the Motor Vehicles Act, 1988 and the Motor Accidents Claims Tribunal awarded compensation of Rs.9,81,600/-. Being aggrieved by that, the injured preferred this appeal. 2. It would be relevant and useful to refer the facts leading to the accident. On 08.06.2009 at 4.30 pm, appellant was travelling as a pillion rider in a motor cycle KL-7 AZ 5204 from Kanjiramattom to Thalayolaparambu public road, when he reached at the place of occurrence, another vehicle KL-5 L 1427 driven in a rash and negligent manner hit against the motor cycle. As a result, he was thrown away and sustained serious injuries. The driver and owner of both vehicles were set ex-parte in the lower court. The insurer of both vehicles filed written statement and admitted the insurance of the vehicle. The evidence consist of oral testimony of PW1 and PW2 and documentary evidence of MACA.No. 460 of 2017 **==> picture [8 x 9] intentionally omitted <==** Exts.A1 to A18. Ext.X1 and Ext.X2 were marked in the lower court. 3. The injured was aged 18 years at the time of accident. He was studying in Vocational Higher Secondary at St. Ignatius Higher Secondary School, Kanjiramattom. The Principal of school was examined as PW2 and Ext.X2 is the attendance register of the academic year 2009 and 2010. The insurer has no dispute with regard to the above aspects, they did not file any appeal against the award amount or any cross objection in this appeal. 4. 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: _“ 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_ MACA.No. 460 of 2017 4 _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 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_ MACA.No. 460 of 2017 5 _compensation”_ 5. Claimant was examined as PW1. His evidence shows that he sustained deep abrasion on both pinna right side of face, E/O left ear bleed with brain matter leaking oral bleeding, right shoulder abrasions, fracture right Z-M complex, lateral orbital wall, right temporal bone, left temporal and petrous bone, occipital bone, left temporal, right frontal/brain stem contusions, cisterns effaced, pneumocephalus and severe brain oedema. 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. Immediately after the accident he was taken to Medical Trust hospital for treatment. CT scan revealed fracture of right zygomotic maxillary complex, lateral orbital wall, right temporal bone, left temporal and petrous bone, occipital bone, MACA.No. 460 of 2017 6 left temporal right frontal brain stem contusions, cisterns effaced, pneumocephalus and severe brain oedema. It can be seen that due to the said injuries claimant was treated in Medical Trust Hospital from 08.06.2009 to 31.07.2009. 6. 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 different. 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. The scope for awarding general damages and special damages are too wide for articulation. Ext.X1 disability certificate was issued from Medical College Hospital, Kottayam, which shows 9% disability. Again he approached the Medical Board and they submitted report stating that he lost the vision of right eye and weakness to lower and upper limbs and the board reported 17% disability. Again, on 07.06.2017 he was examined by the Medical Board and issued Ext.X3 disability certificate, in which the Board MACA.No. 460 of 2017 7 reported 58.66% disability. The insurer has no dispute with regard to the disability. Therefore, the latest disability certificate is admissible. 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. The injured was a student, hence his income is taken as Rs.7,000/-. 40% is added towards future prospects in view of _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)].**_ The total income is Rs.9,800/-. The total disability compensation is Rs.9,800x12x18x58.7/100= Rs.12,42,562/-. The learned Tribunal awarded Rs.48,600/- and the balance amount is Rs.11,93,962/-. The appellant produced additional medical bills Ext.A19 series for Rs.31,794/-, hence Rs.30,000/- is awarded towards additional medical expenses. Just amount was awarded towards other heads. Hence, no further increase is necessary. Therefore, the appellant is entitled to get enhanced compensation of Rs.12,23,962/- MACA.No. 460 of 2017 8 (Rupees Twelve Lakhs Twenty Three Thousand Nine Hundred and Sixty Two only) with 9% interest and proportionate cost in addition to the award amount. 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. This appeal is disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng/22.02.19 MACA.No. 460 of 2017 9 ## **APPENDIX** ## **APPELLANT EXHIBITS** **EXHIBIT X3 ORIGINAL DISABILITY CERTIFICATE ISSUED FROM GOVT.MEDICAL COLLEGE HOSPITAL, KOTTAYAM** **EXHIBIT A19 SERIES A TRUE COPY OF THE MEDICAL BILLS**