Satheesan v. The Managing Director, Kerala State Road Transport Corporation & ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940** ## **MACA.NO. 810 OF 2008** **AGAINST THE AWARD IN O.P.(M.V.) NO.60/1999 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA DATED 29-08-2005** ## **APPELLANT/CLAIMANT :** **SATHEESAN, S/O GOPALAN, KALATHIL PARAMBU, THIRUMALA WARD, ALAPPUZHA.** **BY ADV. SRI.S.SHANAVAS KHAN** ## **RESPONDENTS/RESPONDENTS :** - **1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM.** - **2 THANKAPPAN, S/O. NARAYANAN, VAIKASSERI VEETTHIL, WARD IV, CHOTTANIKARA PANCHAYATH, KOORIKADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** - **3 JAMEELA IQUBAL, W/O. IQBAL VELLUTHARAYIL HOUSE, PALACE WARD, ALAPPUZHA.** - **4 AJESH KUMAR K.A.,(DELETED) S/O. AZHAGAPPAN, KOOTTUNGAL PARAMBIL, THIRUMALA WARD, ALAPPUZHA. * R4 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 04.04.2013 IN I.A. NO.928/2013.** - **5 THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD., ALAPPUZHA. BY ADVS. SRI.JOY GEORGE, SC, K.S.R.T.C.** **MACA.No. 810 of 2008** **2** **SHRI.JOHNSON P.JOHN S.C., KSRTC SRI.E.RAFEEK SRI.JOY GEORGE SC K.S.R.T.C. SRI.RAJESH THOMAS** ## **OTHER PRESENT:** **P.C.CHACKO - S.C** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 810 of 2008** **3** ## **JUDGMENT** This appeal is preferred against the award in O.P. (M.V.) No.60 of 1999 of the Motor Accidents Claims Tribunal, Alappuzha by the injured. Appellant sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.1,23,600/- (Rupees One Lakh Twenty Three Thousand Six Hundred only) with 6% interest and cost. Being aggrieved by that, the injured preferred this appeal. 2. The accident was not disputed by the respondents in the lower court. Claimant's case is that on 21.05.1998 while he was travelling in an autorickshaw KL-4/C-8947 through Alappuzha-Quilon NH road and when he reached at the place of occurrence, a KSRTC bus KL-15/2558 driven in a rash and negligent manner and hit against the auto rickshaw, as a result he sustained serious injuries in the accident. The driver of the KSRTC bus contended that the accident was due to the negligence of the driver of the auto rickshaw. The driver and insurer of the auto rickshaw contested the matter. The owner died and his legal representatives were impleaded as additional **MACA.No. 810 of 2008** **4** respondents. This claim petition was tried along with O.P.(M.V.) Nos.124 of 1999, 125 of 1999, 126 of 1999 and 1063 of 1999. The evidence consist of oral testimony of PW1 and Exts.A1 to A22. Respondents evidence consist of oral testimony of RW1. 3. In permanent injury case, the injured is entitled to get higher income than that in death case. 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. 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 **MACA.No. 810 of 2008** **5** 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.” 4. The assessment of compensation in permanent disability cases 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 **MACA.No. 810 of 2008 6** 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. Appellant sustained serious injuries in the accident. Ext.A20 is the Discharge Card issued from Medical College Hospital, Alappuzha shows that he was admitted in the hospital on 21.05.1998 and discharged on 06.06.1998. Ext.A21 shows that he was admitted in the hospital on 25.6.1998 and discharged on 1.07.1998. Ext.A22 shows that he was admitted in the hospital on 12.09.2000 and discharged on 16.10.2000. Ext.A19 discharge card shows that he was admitted in the hospital on 14.11.2004 and discharged on 25.11.2004. Ext.A3, the wound certificate issued from the Medical College Hospital, Alappuzha shows that the appellant sustained communited fracture of both bones of (R) forearm, lacerated injury over head, deep lacerated wound over (R) knee, persistent headache, recurrent episodes of seizure, crack of fracture of tibial tuberosity (R), fracture of middle phalanx of left index fingers, **MACA.No. 810 of 2008** **7** fracture of mandilla and sphenoid and cerebral oedema. 6. It is true that he sustained serious injuries in the accident. He is undergoing treatment at Medical College Hospital, Alappuzha after discharging from the hospital and Exts.A19, A20, A21 and A22 corroborates that contention. Ext.A7 disability certificate shows 24% permanent disability. The learned Tribunal reduced the disability to 20% which is against the decision of the Apex Court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** . Learned counsel contended that the appellant was a head load worker and was getting Rs.5,000/per month, but the learned Tribunal took only Rs.2,000/-. Hence in view of the decision of the Apex Court in **Dixit Kumar and Ors.** Vs. **Om Prskash Goel 2017 ACJ 2057,** this Court is inclined to take Rs.3,500/- as his monthly income and awarded the following additional amounts as enhanced compensation to the victim. Loss of income for six months Rs.21,000/- (3500x6). The learned Tribunal awarded Rs.12,000/- on that head, the balance is Rs.9,000/-. Permanent disability Rs.1,61,280/(3500x12x16x24%). The learned Tribunal awarded Rs.81,600/- **MACA.No. 810 of 2008 8** on that head. The balance is Rs.79,680/-. Future Medical Treatment Rs.25,000/-. The learned tribunal awarded only a meagre amount of Rs.10,000/- for pain and suffering and loss of amenities, hence in addition to that, an amount of Rs.50,000/- is awarded for Pain and sufferings and Rs.50,000/- is awarded for Loss of amenities. The total enhanced compensation is Rs.2,13,680/- (Rupees Two Lakhs Thirteen Thousand Six Hundred and Eighty only). Accordingly, the appellant is entitled to get an enhanced compensation of Rs.2,13,680/- (Rupees Two Lakhs Thirteen Thousand Six Hundred and Eighty only) with 9% interest and proportionate cost in addition to Rs.1,23,600/(Rupees One Lakh Twenty Three Thousand Six Hundred only) awarded by the learned Tribunal. The 1[st] respondent is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. M.A.C.A is disposed of as above. ## Sd/- ## **P.D. RAJAN JUDGE** /True Copy/ P.A. To Judge NS