Shajas Pushpamadae v. National Insurance Co. Ltd. (MACA Nos. 83 of 2015 and 1374 of 2015, High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940 MACA.No. 83 of 2015** **AGAINST THE AWARD IN OPMV 1713/2007 of M.A.C.T.,KOLLAM DATED 3004-2014** ## **APPELLANT/PETITIONER:** **MR.SHAJAS PUSHPAMADE AGED 51 YEARS S/O.EBRAHIMKUTTY, THEESARI MANZIL, THEKKUMKARA PUTHICHIRA P.O, KOLLAM.** **BY ADVS. SRI.PRATHEESH.P SMT.S.SEETHA** ## **RESPONDENT/3RD RESPONDENT:** **THE DIVISIONAL MANAGER, M/S.NATIONAL INSURANCE CO.LTD., KOLLAM - 691 001** **BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.11.2018, ALONG WITH MACA.1374/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos.83&1374 of 2015 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940** **MACA.No. 1374 of 2015** **AGAINST THE AWARD IN OPMV 1713/2007 of M.A.C.T.,KOLLAM DATED 30-04-2014** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED** **KOLLAM, NOW REPRESENTED BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI 35.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **MR.SHAJAS PUSHPAMADE S/O.EBRAHIMKUTTY, THEESARI MANZIL, THEKKUMKARA, PUTHICHIRA P.O., KOLLAM, PIN: 691 320.** **BY ADVS. SRI.PRATHEESH.P (B/O) (NO MEMO)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.11.2018, ALONG WITH MACA.83/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos.83&1374 of 2015 3 ## **JUDGMENT** These appeals are preferred against the award in OP(MV) No.1713/2007 of the Motor Accidents Claims Tribunal, Kollam. On 18.02.2007 at 7.30 pm, the appellant in M.A.C.A No.83/2015 was standing at Parakulam junction on the Kollam - Trivandrum NH road. At that time, a maruthi car KL-16D 1315 driven in a rash and negligent manner knocked down the appellant. As a result, he sustained serious injuries. Immediately, he was removed to hospital. The learned Tribunal awarded compensation of Rs.16,18,860/- with 9% interest and proportionate cost. Being aggrieved by that, the injured preferred M.A.C.A No.83/2015 and the insurer preferred M.A.C.A No.1374/2015. 2. The accident was not disputed by the driver and owner in the lower court. They were set ex-parte. The insurer admitted the insurance of the vehicle. The claimant's evidence consist of oral testimony of PW1 and PW2 and documentary evidence of Exts.A1 to A23. Ext.C1 is the disability certificate, which shows 74% permanent disability. 3. The appellant in M.A.C.A No.83/2015 MACA.Nos.83&1374 of 2015 **==> picture [8 x 8] intentionally omitted <==** contended that the injured was a business man aged 44 years, who was getting Rs.25,000/- per month, but the Motor Accident Claims Tribunal reduced the income to Rs.5,000/- and awarded a meagre amount towards permanent disability. The appellant was conducting a wire cut manufacturing unit, wherein he is making bricks, after the accident, the firm was running in loss and revenue recovery proceedings were initiated by the Revenue Authorities and now it is fully closed. The evidence of PW2, the Assistant Engineer, KSEB, Mayyanad in this regard is relevant and which was not considered by the lower court. Therefore, he is entitled to get just amount towards compensation. 4. The insurer filed M.A.C.A No.1374/2015 and contended that just amount was awarded towards permanent disability and no interference is necessary on that head, but excess amount was awarded towards loss of amenities and future treatment without any medical evidence, hence, the amount awarded towards both heads are to be reduced. 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 MACA.Nos.83&1374 of 2015 5 ## 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 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)._ MACA.Nos.83&1374 of 2015 6 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. It is an admitted fact that the appellant in M.A.C.A No.83/2015 sustained serious injuries and permanently disabled. The Medical Board assessed 74% disability and now lying in a vegetable condition. The appellant sustained the following injuries as per Ext.A6 wound certificate issued from Holy Cross Hospital, Kottiyam. Lacerated penetrating wound 4x1x1cm lower lip, abrasion both knees + deformity right arm + bleeding from mouth + contusion right chest wall + left chest wall abrasion + contusion left molar region + contusion face. Ext.A7 shows that the appellant sustained severe head injury, diffuse axonal MACA.Nos.83&1374 of 2015 7 injury, fracture right humerus, right clavicle and right fibula. He was treated as an in-patient for about 61 days; 53 days at KIMS Hospital, Thiruvananthapuram as per Ext.A7 and Ext.A10 and 8 days at Medical College Hospital, Thiruvananthapuram as per Ext.A12. In this context, I have considered the amount awarded by the Tribunal. The following amounts are awarded to the victim. Now, he is fully disabled, paralysed and living in a vegetable state. |_1_|_Loss of earning till date_|_Rs.60,000/-_| |---|---|---| |_2_|_Partial loss of earning_|_Nil_| |_3_|_Compensation for anticipated_<br>_treatment_|_Rs.1,00,000/-_| |_4_|_Transportation to hospital and_<br>_back (several times)_|_Rs.25,000/-_| |_5_|_Extra nourishment_|_Rs.3,050/-_| |_6_|_Damage to clothing and_<br>_articles_|_Rs.250/-_| |_7_|_Others - Medicine and_<br>_Bystander expenses etc_|_Rs.4,08,660/-_<br>_Rs.6,100/-_| |_8_|_Compensation for pain and_<br>_sufferings_|_Rs.1,50,000/-_| |_9_|_Compensation for continuing_<br>_or permanent disability if any_|_Nil_| |_10_|_Compensation for loss of_<br>_earning power_|_Rs.5,77,200/-_| |_11_|_Compensation for loss of_<br>_amenities and enjoyment_|_Rs.2,88,600/-_| ||**_Total_**|**_Rs.16,18,860/-_**| MACA.Nos.83&1374 of 2015 8 7. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. 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 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. ## 8. Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ 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_ MACA.Nos.83&1374 of 2015 9 _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 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._ 9. The injured was examined as PW1 in the lower court. His evidence shows that he is permanently disabled and MACA.Nos.83&1374 of 2015 10 unable to do any work. He is living in a vegetable state. The Medical Board, Medical College Hospital, Thiruvananthapuram issued Ext.C1 disability certificate, in which the permanent disability was certified as 74%. The following disabilities are noted. Organic amnestic syndrome, Organic personality disorder, Spastic dysarthria, Spastic incordination right, Low ulnar palsy right and Loss of teeth _._ The Tribunal observed that PW1, the claimant was brought before the Tribunal in a cot and he is living in a vegetable state. Now, there is impairment in his memory, visual and auditory memory loss and hemiparesis to him and fully bed ridden. Even though, the Medical Board assessed 75% disability, but in view of the injuries he is fully bed ridden, unable to do any work and having 100% permanently disability. 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 MACA.Nos.83&1374 of 2015 **==> picture [16 x 8] intentionally omitted <==** circumstances have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. 10. The appellant in M.A.C.A No.1374/2015 has no dispute with regard to the above disability. PW2, the Assistant Engineer, KSEB, Mayyanad issued Exts.A14, A15 and A23, which shows that PW1 was conducting a small scale industrial unit, where he is manufacturing wire bricks. An average of 200 units of electricity was consumed by him. He also produced Ext.A21 which shows the details of amount deposited in SBT, Mayyanad. He might have getting Rs.25,000/- per month. In the absence of any other evidence, the learned Tribunal reduced his income to Rs.5,000/-. In view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057),**_ it is better to fix his monthly income as Rs.10,000/considering him as a business man. The injured was 48 years at the time of accident and the multiplier is 13. He is entitled to get following amount as compensation. In view of _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)],**_ 25% has to be added towards future prospects. The total income is Rs.12,500/-. His permanent disability is 100%, MACA.Nos.83&1374 of 2015 12 the compensation is Rs.12,500x12x13=Rs.19,50,000/-. The learned Tribunal awarded Rs.5,77,200/- and the balance amount is Rs.13,72,800/-. Even though, the appellant in M.A.C.A No.1374/2015 contended that excess amount was awarded towards loss of amenities and future treatment, I find no merit in the above contention, since he is living in a vegetable state. Future bystander expense and medical expenses were not properly considered. Therefore the appellant is entitled to get Rs.2,00,000/- towards future medical treatment, Rs.1,50,000/towards nursing charge/bystander expenses and Rs.1,50,000/- towards pain and sufferings. Therefore, the total enhanced compensation is Rs.18,72,800/-. The total claim amount is only Rs.15,00,000/-. In view of _**Rajesh and Ors. vs. Rajbir Singh and Ors. ( 2013 ACJ 1403),**_ this court can exercise its discretion for awarding just compensation. Accordingly, the appellant in M.A.C.A No.83/2015 is entitled to get enhanced compensation of Rs.18,72,800/- (Rupees Eighteen Lakhs Seventy Two Thousand and Eight Hundred only) with 9% interest from the date of petition till realisation with proportionate cost in addition to the award amount. The insurer, who is the MACA.Nos.83&1374 of 2015 **==> picture [16 x 8] intentionally omitted <==** appellant in M.A.C.A No.1374/2015, 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. It is clarified that the enhanced compensation towards bystander expenses and future medical treatment will not carry any interest. These appeals are disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng/03.12.18