SAMEER K.K. @ MUHAMMED SAMEER K.K. S/O.K.K.MUHAMMED v. KARAKKANDY NARAYANANKARAKKANDY NARAYANAN S/O.KANNAN & THE MANAGER NATIONAL INSURANCE CO.LTD.

**WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940** ## **AGAINST THE AWARD IN OPMV 988/2012 of M.A.C.T., THALASSERY** ## **APPELLANT/PETITIONER** **SAMEER K.K @ MUHAMMED SAMEER K.K. S/O.K.K.MUHAMMED, SUMAYYA MANZIL, MAYYIL P.O.,KANNUR DISTRICT** **BY ADVS.SRI.P.U.SHAILAJAN SRI.M.SURESH KUMAR SRI.V.SREEJITH (K/1398/2000) SMT.D.N.NISHANI SMT.VIDYA KURIAKOSE** ## **RESPONDENTS/RESPONDENTS:** **1. KARAKKANDY NARAYANANKARAKKANDY NARAYANAN S/O.KANNAN, THAYYIL, PAVANNOOR MOTTA,KUTTIYATTOOR AMSON, PAVANNOOR DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT - 670602 2. THE MANAGER NATIONAL INSURANCE CO.LTD. P.B. NO. 40, BANK ROAD, KANNUR, PIN- 670 001** **R2 BY ADV. SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bng** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.15 of 2018 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 25[th] day of July, 2018 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.988/2012 of the Motor Accidents Claims Tribunal, Thalassery by the injured. On 11.08.2010 at 9.00 pm, the appellant sustained serious injuries in a motor accident, while he was riding his motor cycle from Mayyil to Kandakai and the learned Tribunal awarded compensation of Rs.7,74,900/-. Being dissatisfied by that amount, the injured preferred this appeal. 2. The claimant's case in the lower court was that on 11.08.2010 at 9.00 pm, while he was riding his motor cycle, an autorickshaw KL-59A/8937 driven in a rash and negligent manner hit against the motor cycle, as result, he was drawn away and sustained serious injuries. Immediately he was removed to hospital. The owner cum driver was set ex-parte. 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 A9. The disability **-2-** ## **M.A.C.A No.15 of 2018** certificate was marked as Ext.C1. The learned Tribunal awarded the following amount as compensation. _1. Loss of earning Rs.30,000/2. Bystanders expense Rs.22,200/3. Transporation Rs.25,000/4. Extra nourishment Rs.20,000/5. Damage to clothing & articles Rs.1,000/6. Medical expenses Rs.2,60,700/7. Pain and sufferings Rs.75,000/8. Loss of amenities Rs.50,000/9. Disability compensation Rs.2,16,000/10. Future medical expense Rs.75,000/-_ _**Total Rs.7,74,900/-**_ 3. The learned counsel appearing for the appellant contended that, after the accident, he is continuing his treatment and produced additional medical bills for Rs.1,87,000/-. He had taken treatment from Highland Hospital, Mangalore after the award and spent huge amount. Towards future treatment, a meagre amount was awarded. Hence, he is entitled to get just amount towards future treatment. 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 ## **M.A.C.A No.15 of 2018** **-3-** 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 assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. 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: “ 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 ## **M.A.C.A No.15 of 2018** **-4-** 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.” 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. 6. Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ held that in permanent injury case, the victim is entitled to get just amount as compensation and **-5-** ## **M.A.C.A No.15 of 2018** ## 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 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 ## **M.A.C.A No.15 of 2018** **-6-** 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”. 7. Even though, the appellant contended that he is disabled, no oral evidence has been adduced in the lower court to substantiate that contention. In the absence of such oral evidence, the learned Tribunal awarded Rs.7,74,900/-. It is true that the compensaton can be awarded to the victim only on proof of the measure of damages. The personal injury has been explained and proved by the claimant, but he has not examined the Doctor, who treated him. In the circumstances, the Tribunal is directed to record the oral evidence of the claimant and consider the medical bill and dispose the matter as per law. In the circumstances, the award passed by the Tribunal is set aside. The amount, if any, deposited by the insurer towards compensation shall be adjusted with the final award amount. Both parties are directed to appear before the Tribunal on 24.09.2018. On such appearance, the Tribunal shall dispose the matter within three months from the date of such appearance. The ## **M.A.C.A No.15 of 2018** **-7-** appellant is at liberty to take back the original documents and produce the same before the Tribunal. Sd/- **P.D.RAJAN JUDGE** bng