Sharafudheen v. Anees P. and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** **MACA.NO. 2558 OF 2010** **AGAINST THE AWARD IN O.P.(M.V.) NO.1192/2006 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE DATED 19-11-2009** ## **APPELLANT/PETITIONER :** **SHARAFUDHEEN, AGED 33 YEARS, S/O KAMMED, RESIDING AT FAZEELA MANZIL, VEPPALAM NILAM PARAMBA, P.O. OLAVANNA, KOZDINATTU MUKKU (VIA), KOZHIKODE.** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN** ## **RESPONDENTS/RESPONDENTS :** |**1**|**ANEES P., S/O ABDURAHIMAN,**| |---|---| ||**AGE NOT KNOWN, RESIDING AT PONMADAM HOUSE,**| ||**KUNDUNGAL, P.O. KALLAI, KOZHIKODE,**| ||**PIN-673 003.**| |**2**|**NATIONAL INSURANCE COMPANY LIMITED,**| ||**DIVISIONAL OFFICE, NOOR COMPLEX,**| ||**NEAR ARAYIDATHUPALAM, MAVOOR ROAD,**| ||**KOZHIKODE, PIN-673 661.**| ||**BY ADV. SRI.LAL GEORGE**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2558 OF 2010** **2** ## **JUDGMENT** This appeal is preferred against the award in O.P. (M.V.) No.1192 of 2006 of the Principal Motor Accidents Claims Tribunal, Kozhikode by the injured. Appellant sustained injuries in a motor accident and he preferred a claim petition under Sec.166 of the Motor Vehicles Act, 1988. The Principal Motor Accidents Claims Tribunal awarded compensation of Rs.2,66,300/- (Rupees Two Lakh Sixty Six Thousand Three Hundred only) and directed the insurer to satisfy the award. Being aggrieved by that, the claimant preferred this appeal. 2. It would be relevant and useful to mention the facts leading to the accident. On 10.12.2005 at 12.45 night, the appellant was travelling as a pillion rider in KL-11/J-4954 from Kozhikode to Meenchanda, when he reached at Kallai road, another vehicle KL-11/S-6708 driven in a rash and negligent manner hit against the motor cycle, as a result he sustained serious injuries. Immediately he was removed to hospital. The owner cum driver was ex parte. The insurer admitted the insurance of **MACA.NO. 2558 OF 2010 3** the vehicle. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A5. The Medical Board Report was marked as Ext.C1. 3. Learned counsel submitted that the appellant was aged 32 years at the time of accident and was working as a Coolie. He claimed Rs.7,000/- per month, but the learned Tribunal took only Rs.2,000/- for awarding compensation. He sustained brain stem injury and fracture to femur and unable to do any work. Just amount was not awarded by the Tribunal. Hence he is entitled to get just amount as compensation. 4. 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: “ 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 **MACA.NO. 2558 OF 2010** **4** 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). 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”. ## 5. In personal injury cases, the compensation has to be **MACA.NO. 2558 OF 2010 5** 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. Ext.A2 is the Accident Register cum-wound certificate, which shows that the injured sustained bleeding nose, small abrasion on the left knee, deformity of the (Lt) CC, minor abrasions on face, fracture femur shaft (RT), Brain stem contusion. He was admitted in PVS Hospital, Calicut on 11.12.2005 and discharged on 12.12.2005. From there, he was referred to Medical College, Calicut. Ext.A3 is the discharge card issued from Kozhikode District Co-operative Hospital Limited. It shows that he was admitted there on 01.09.2008 and discharged on 15.09.2008. The diagnosis shows three year old malunited fracture SOF (R), shortening of Leg, **MACA.NO. 2558 OF 2010 6** foot in invertion and Brian stem injury. The evidence in Exts.A2 and A3 shows that he sustained serious injuries in the accident. Ext.C1 is the Medical Board Report, showing 60% permanent disability on the appellant. Respondents have no dispute with regard to the above injuries and disability. 6. 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 **MACA.NO. 2558 OF 2010 7** assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. 7. The injured was a Coolie and was getting an amount of Rs.7,000/- per month but the learned Tribunal took Rs.2,000/-. In view of **Dixit Kumar and Ors.** Vs. **Om Prakash Goel [2017 ACJ 2057]** , his income is fixed as Rs.5,000/-. In view of **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)]** 40% (5000x40%) of the income is added towards future prospects, and the income will be Rs.7,000/-. The multiplier is 16. Hence he is entitled to get an amount of Rs.8,06,400/(7000x12x16x60%) towards permanent disability. The learned Tribunal awarded an amount of Rs.2,44,800/- on that head and the balance is Rs.5,61,600/-. In addition to that, an additional amount of Rs.20,000/- is awarded for Loss of amenities and an additional amount of Rs.20,000/is awarded for Pain and sufferings. Accordingly, the appellant is entitled to get an enhanced compensation of Rs.6,01,600/- (Rupees Six Lakh One Thousand Six Hundred only) with 9% interest and proportionate cost in addition to Rs.2,66,300/- (Rupees Two Lakh Sixty Six Thousand Three **MACA.NO. 2558 OF 2010** **8** Hundred only) awarded by the learned Tribunal. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment in view of **Rajesh V. Rajbir Singh [2013 ACJ 1403 (SC)]** _,_ failing which it will carry 12% interest from the date of default. M.A.C.A is disposed of as above. NS Sd/- **P.D.RAJAN, JUDGE** /True Copy/ P.A. To Judge