ROSHAN KOSHY v. NATIONAL INSURANCE COMPANY LIMITED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** ## **M.A.C.A.No. 4200 of 2018** **AGAINST THE AWARD IN OPMV 1488/2014 of ADDITIONAL DISTRICT COURT& MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA DATED 10-07-2018** ## **APPELLANT/PETITIONER IN THE O.P.[M.V]:** **ROSHAN KOSHY AGED 26 YEARS S/O. VARGHESE T. KOSHY, THERETHU FIELD VIEW BUNGLAW, CHANDHANAPALLY P.O., PATHANAMTHITTA.** **BY ADVS. SRI.T.K.BIJU (MANJINIKARA) SMT.ANNIE M.ABRAHAM** ## **RESPONDENT/3RD RESPONDENT IN THE O.P.[M.V]:** **THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED, KALLUMKATHARA BUILDING, MAIN ROAD, PATHANAMTHITTA.** **S.C - SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 4200 of 2018** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)No, 1488 of 2014 of Motor Accidents Claims Tribunal, Pathanamthitta by the injured. Appellant sustained injuries in a motor accident and permanently disabled, the Motor Accidents Claims Tribunal Pathanamthitta awarded compensation of Rs.5,37,932/- to him. Being aggrieved by that, the injured preferred this appeal. 2. It would relevant and useful to mention the facts leading to this accident. Appellants case was that on 28-102014 at 11.15.am, he was riding a motor cycle through Kulanada - Omalloor public road. When he reached at Kumbalam north, an autorikshaw KL-03-W-4676 driven in a rash and negligent manner hit against the motor cycle. As a result, he was thrown away and sustained serious injuries. The accident was due to the rash and negligent driving of the autorikshaw. The driver and owner were set ex-parte in the lower court. Insurer admitted the insurance of the vehicle. Petitioner was examined as PW1 and his documents were marked as Ext.A1 to A15 series. **M.A.C.A.No. 4200 of 2018** **3** ## 3. 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 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_ **M.A.C.A.No. 4200 of 2018** **4** _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”._ 4. Respondents have no dispute with regard to the above accident. They did not file any appeal against the award or cross objection in this appeal challenging the quantum or negligence. Advocate Lal George appearing for the insurer submitted that the vehicle was holding valid insurance at the time of accident who contended that just amount was awarded by the Tribunal and no interference is necessary. **M.A.C.A.No. 4200 of 2018** **5** 5. Appellant was working as a salesman in a Yamaha showroom, Pandalam and was getting Rs.15,000/per month. The Motor Accidents Claims Tribunal reduced the income to Rs.6,000/- which is very low. He sustained 23% permanent disability . That disability was also reduced by the Tribunal. Hence the appellant is entitled to get just amount as compensation. 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 vested in **M.A.C.A.No. 4200 of 2018** **6** assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. 6. PW1 deposed that he sustained serious fracture in this accident. Ext.A10 is the discharge certificate, Ext.A11 and A14 are discharge summary issued from Pushpagiry Medical College Hospital, Thiruvalla. Ext.A10 discharge certificate shows 1.Open fracture dislocation of right talus, 2.Fracture shaft of right femur, 3.Mangled right foot with 1st, 2nd, 3rd & 4th metatarsal fracture, 4.closed fracture right 2nd & 3rd metacarpel, 5.Contusion both knee, 6.Pain all over the body. Ext.A14 disability certificate issued from District Hospital, Kozhencherry shows permanent disability of 23%, but the Motor Accidents Claims Tribunal reduced the disability from 23% to 15% ignoring the direction issued by the Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]** ._ Hence before reducing the disability the injured was not referred to another Medical Board for getting second opinion about the disability. Hence in the absence of such evidence, the injured has a permanent disability of 23%. In the absence of contra evidence the monthly income Rs.6,000/- taken by **M.A.C.A.No. 4200 of 2018** **7** the tribunal is modified as Rs.10,000/- in view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ as a salesman. 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. 7. It is found that just amount was not awarded by the Tribunal, hence following amount is awarded as enhanced compensation. The disability compensation is Rs.10,000x12x18x23/100=Rs.4,96,800/-, the lower court awarded Rs.19,44,00/- and the balance amount is 3,02,400/-. In addition to that amount, loss of income for five months at the rate of Rs.10,000/- the amount is Rs.50,000/-, the lower court awarded Rs.18,000/- and the **M.A.C.A.No. 4200 of 2018** **8** balance amount is Rs.32,000/-. Rs.20,000/- towards loss of amenities and Rs.20,000/- towards pain and suffering. The appellant is entitled to get enhanced compensation of Rs.3,74,400/- with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the award amount within 30 days from the date of receipt of a copy 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,** nak **JUDGE**