Rijo v. Abdul Karim Kunju Natunkal and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940** ## **M.A.C.A.No. 1529 of 2016** **AGAINST THE AWARD IN OPMV 536/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 21-01-2016** ## **APPELLANT/PETITIONER:** ## **RIJO** **S/O JOHNSON, PUTHUPPILLYPARAMBIL HOUSE, AYYAMKODE PULLUTHY DESOM, KALLUR VILLAGE, MUTTITHADY P.O, MUKUNDAPURAM TALUK.** ## **BY ADV. SRI.P.V.BABY** ## **RESPONDENTS/RESPONDENTS 1 AND 3:** **1 ABDUL KARIM KUNJU NATUNKAL THEKKETHIL HOUSE, KAPPIL WEST, KRISHNAPURAM P.O, KAYAMKULAM - 690 533** **2 NATIONAL INSURANCE CO. LTD KAYAMKULAM - 690 502** ## **BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 1529 of 2016** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)N0.536/2011 of Motor Accidents Claims Tribunal, Irinjalakuda by the injured. The appellant sustained serious injuries in a motor accident and the Motor Accidents Claims Tribunal awarded Rs.6,41,439/- (Six Lakhs Forty One Thousand Four Hundred and Thirty Nine only) as compensation and the insurer was directed to satisfy the award. Being aggrieved by that, the injured preferred this appeal. 2. It would be relevant and useful to mention the facts leading to this accident. The appellant's case in the lower court was that on 25-04-2011 at 5.15pm, he was travelling as a pillion rider in a motor cycle, when he reached at Amballor Junction, a car KL 29 /B 573 driven in a rash and negligent manner from behind hit against the motor cycle. As a result, he sustained serious injuries. The accident was due to the rash and negligent driving of the car. Immediately he was removed to hospital. The respondents did not dispute the accident and they neither **M.A.C.A.No. 1529 of 2016** **3** filed any appeal nor cross objection before this court. In the written statement first and second respondents were set ex-parte. The insurer admitted the insurance of the vehicle. 3. It is true that the claimant is entitled to get just amount as compensation. To prove the injuries and disability, claimant examined PW1 and PW2 in the lower court and his documents were marked as Ext.A1 to A14. Immediately after the accident he was removed to Heart hospital Thrissur. Ext.A3 is the wound certificate which has been produced to prove the injuries. As per the wound certificate he sustained the following injuries. 1.Head injury 2.Left Traumatic optic neuropathy 3.Complete loss of vision to left eye 4.Left eye haematoma 5.Laceration 2x3cm left eye-brow 6.Fracture lateral wall of left orbit with fracture of optic canal etc. A4 discharge summary shows that he was treated in Heart Hospital Thrissur from 25-14-2011 to 27-04-2012. He was also treated in Little Flower Hospital, Angamali and Ext. A6 is the case summary. Ext.A7 shows that he was treated at Sreedhareeyam Ayurvedic Hospital. The **M.A.C.A.No. 1529 of 2016** **4** respondents have no dispute with regard to the above injuries. Ext.A7 is the ophthalmic report and Ext.A11 is the disability certificate which shows 40% visual disability. In the absence of any dispute with regard to disability in the lower court, I am of the view that further discussion on that aspect is not necessary. 4. 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 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 **M.A.C.A.No. 1529 of 2016** **5** 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. 5. Apex Court in _**Yadava Kumar**_ v. _**D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567)**_ 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 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_ **M.A.C.A.No. 1529 of 2016** **6** _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 compensation”._ 6. The injured is an electrician working with a PWD contractor and he was getting Rs.10,500/- per month. Learned Tribunal took Rs.6,000/-. Ext.A12 is the salary certificate issued by sajumon T.J who is an electrical contractor. He was examined as Pw2. The learned Tribunal **M.A.C.A.No. 1529 of 2016** **7** observed that he was not fully convincing with the income for the salary stated by the petitioner. But no contra evidence has been produced in the lower court to discard Ext.A12. PW1 doctor also stated that he has a permanent disability of 40%. 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. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis.Hence he is entitled to get just amount as compensation. In view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ Rs.9,000/- is taken as the monthly income. Along with that in view of _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ 40% is added **M.A.C.A.No. 1529 of 2016** **8** towards future prospects. Therefore the monthly income for calculating disability compensation is Rs.12,600x12x18x40/100=1088,640/-. The learned Tribunal awarded Rs.5,18,400/-. The balance is Rs.5,70,240/-. The following amount is awarded as enhanced compensation. Loss of income for six months @ Rs.9,000/- is Rs.54,000/- and the learned Tribunal awarded Rs.12,000/-, the balance amount is Rs.42,000/-. |Head of claim|Amount<br>awarded(Rs.)|Amount<br>modified(Rs.| |---|---|---| |Loss of earning|12,000|42,000| |Transportation expense|2,000|Nil| |Extra nourishment|1,000|Nil| |Damage to clothing|500|Nil| |Bystander's expense|2,000|Nil| |Medical expense|55,539|Nil| |Pain and suffering|25,000|25,000| |Loss of earning power|Nil|Nil| |Permanent disability|5,18,400|5,70,240| |Loss of amenities|25,000|25,000| **M.A.C.A.No. 1529 of 2016** **9** |Compensation<br>for<br>disfigurement|Nil|Nil| |---|---|---| |Compensation for loss of<br>marriage prospectus and<br>employment<br>opportunities|Nil|Nil| |Anticipated<br>medical<br>expenses|Nil|Nil| |Compensation<br>for<br>mental dejection and<br>unhappiness in life|Nil|Nil| |Total|6,41,439|6,62,240| 7. Therefore the appellant is entitled to get an enhanced compensation of Rs.6,62,240/- (Rupees Six Lakhs Sixty Two Thousand Two Hundred and forty only) 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 dispose of, as above. Sd/- **P.D.RAJAN,** nak **JUDGE**