Shriram General Insurance Company Limited v. Regi

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 13TH DAY OF JULY 2018 / 22ND ASHADHA, 1940** **MACA.No. 659 of 2017** **OP(MV).224/2014 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA** ## **APPELLANT/3RD RESPONDENT :** **SHRIRAM GENERAL INSURANCE COMPANY LIMITED, JAIPUR NOW REPRESENTED BY ITS LEGAL OFFICER, AZAD TOWER, AMMANCOIL CORSS ROAD, KOCHI-35.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER :** **REGI, S/O.GEORGE, THATTAMPARAMBIL HOUSE, KALTHOTTY P.O., VELLIAMKANDAM KARA, AYYAPPANKOVIL VILLAGE, PIN-685507.** **BY ADVS. SRI.MATHEW JOHN (K)** **SRI.DOMSON J.VATTAKUZHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2018, ALONG WITH MACA.700/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **3.8.2018** ## **P.D. RAJAN, J.** ## **--------------------M.A.C.A. Nos.659 & 700 of 2017** ## **---------------------------------Dated this the 13[th] day of July, 2018** ## **J U D G M E N T** These appeals are preferred against the award in O.P.(M.V.) Nos.224 of 2014 and 226 of 2014 of the Motor Accidents Claims Tribunal, Thodupuzha by the insurer. The above petitions were filed under Section 166 of the Motor Vehicles Act, 1988 for getting compensation for the injuries sustained in a motor accident and the learned Tribunal awarded an amount of Rs.3,82,300/(Rupees Three Lakh Eighty Two Thousand Three Hundred only) in O.P.(M.V.) No.224 of 2014 and an amount of Rs.2,36,000/- (Rupees Two Lakh Thirty Six Thousand only) in O.P.(M.V.) No.226 of 2014 with 9% interest and cost. Being aggrieved by that, the insurer preferred these appeals. 2. Claimants case in the lower court was that on 27.03.2012 while they were travelling in a vehicle KL17/D-2956 from Ernakulam to Marykulam and when they reached at Kathalikadu, the vehicle hit against an electric M.A.C.A. Nos.659 & 700 of 2017 2 tower, as a result, they sustained serious injuries. Immediately they were removed to hospital. The 1[st] respondent driver and additional respondents 4 to 6 were ex parte in the lower court. The owner of the vehicle died and his legal representatives were impleaded as additional respondents 4 to 6. The insurer admitted the insurance of the vehicle. Both petitions were tried jointly. As per order in I.A. No.517 of 2015, the evidence was recorded in O.P.(M.V.) No.224 of 2014. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A30. Respondents evidence consist of documentary evidence of Ext.B1. The learned Tribunal awarded the following amounts as compensation. ## O.P.(M.V.) No.224/2014 |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in Rupees)|Amount<br>Awarded (in<br>Rupees)|Particulars| |---|---|---|---|---| |1|Loss of earning|40,000/-|40,000/-|| |2|Transportation exp.|8,000/-|8,000/-|| |3|Extra nourishment|2,000/-|2,000/-|| |4|Damages to clothes|500/-|500/-|| ## M.A.C.A. Nos.659 & 700 of 2017 3 |5|Treatment<br>expenses|50,000/-|50,000/-|48,504/-|48,504/-|Medical<br>bills<br>produced<br>for<br>Rs.48,504/-| |---|---|---|---|---|---|---| |6|Charges<br>for<br>bystander|3,000/-||3,000/-||| |7|Pain and suffering|50,000/-||50,000/-||| |8|Permanent<br>Disability|1,00,000/-||2,05,296/-||(26320x12x<br>13x5/100)| |9|Loss of earning<br>Power|25,000/-||||| |10|Loss of amenities|25,000/-||15,000/-||| |11|Future treatment|10,000/-||10,000/-||| ||Total|Limited<br>to<br>Rs.1,50,000/-||Rs.3,82,300/||| |O.P.(M.V.) No.226/2014||||||| |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in Rupees)|Amount<br>Awarded<br>(in Rupees)||Particulars|| |1|Loss of earning|45,000/-|-||Permanent<br>disability<br>assessed|| |2|Transportation exp.|5,000/-|5,000/-||(Bills<br>produced for<br>Rs.2,600/-)|| |3|Extra nourishment|2,500/-|2,500/-|||| |4|Damages to clothes|2,500/-|500/-|||| |5|Treatment<br>expenses|17,000/-|13,000/-||Bills<br>produced for<br>Rs.12,676/-|| |6|Charges<br>for<br>bystander|1,000/-|1,000/-|||| |7|Future treatment|5,000/-|5,000/-|||| M.A.C.A. Nos.659 & 700 of 2017 4 |8|Pain and suffering|50,000/-|10,000/-|| |---|---|---|---|---| |9|Permanent<br>Disability|60,000/-|1,89,000/-|(11250x12x<br>14x10/100)| |10|Loss of earning<br>Power|25,000/-||| |11|Loss of amenities|50,000/-|10,000/-|| ||Total|Limited to<br>Rs.1,00,000/-|Rs.2,36,000/|| 3. Learned counsel appearing for the appellant in O.P.(M.V.) No.224 of 2014 contended that the injured is an Excise Guard, aged 49 years at the time of accident and he is continuing service in the Excise Department. His employment prospects were not affected due to permanent disability sustained in the accident. The income taken by the Tribunal is at very high rate and 40% was added with the multiplicand considering his future prospects, but actually he is entitled to get only 30% increase. In O.P.(M.V.) No.226 of 2014, the injured is an agriculturist and his monthly income is taken as Rs.7,500/- which is also high and the learned Tribunal added 50% future prospects instead of 25%. It is also contended that in injury cases, future prospects cannot M.A.C.A. Nos.659 & 700 of 2017 5 be taken for awarding disability compensation and in case of a State Government employee or other employees in the Government Department, split multiplier has to be taken since after the retirement, they are getting a nominal amount. 4. Learned counsel appearing for the claimants contended that the injured in O.P.(M.V.) No.224 of 2014 sustained a permanent disability at 15%, but the learned Tribunal reduced it to 5%, which is illegal. In O.P.(M.V.) No.226 of 2014, the claimant is an agriculturist and claimed Rs.12,000/- as his monthly income, but the learned Tribunal took only Rs.7,500/- while awarding compensation. 5. 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 M.A.C.A. Nos.659 & 700 of 2017 6 taken into account. Amount of compensation for nonpecuniary 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 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 M.A.C.A. Nos.659 & 700 of 2017 7 compensation-is taking an appropriate multiplier of an appropriate multiplicand.” 6. 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 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. M.A.C.A. Nos.659 & 700 of 2017 8 7. For determination of compensation for Government servants and other coolie worker normally the courts are following the principle of multiplier method in order to avoid confusion. It is true that the State Government employees are retiring at the age of 56 and after retirement, if there is permanent disability it will affect their earning capacity. In order to avoid inconsistencies in awarding just compensation, the multiplier method is proper and taking split multiplier method will create confusion among the Tribunals. Therefore, the above argument to take split multiplier is unsustainable and no specific reasons are highlighted by the appellant for deviating from the Multiplier Method. A Government Servant is retiring at the age of 56 years and thereafter he is getting low income is not a ground to deviate from the multiplier method and that is not a ground to take split multiplier method. 8. The principle of taking split multiplier has been discussed by the Apex Court in **Puttamma** v. **Narayana Reddy [2014 (1) KLT 738 (SC)]** in which M.A.C.A. Nos.659 & 700 of 2017 9 ## paragraphs 32,33 and 34 read as follows: _32. For determination of compensation in motor accident claims under S.166 this Court always followed multiplier method. As there were inconsistencies in selection of multiplier, this Court in Sarla Verma prepared a table for selection of multiplier based on age group of the deceased/victim. Act, 1988 does not envisage application of split multiplier._ _33. In K.R. Madhusudhan & Ors. v. Administrative Officer & Anr. (2011 (1) KLT SN 98 (C.No.136) SC = (2011) 4 SCC 689), this Court held as follows:_ _“14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6._ _15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method.”_ M.A.C.A. Nos.659 & 700 of 2017 10 _34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in the case of Sarla Verma (supra) as affirmed in the case of Reshma Kumari (supra)._ 9. Therefore, the arguments advanced by the appellant/insurer is to be rejected. On the contrary, future prospects of the injured has to be considered in view of National **Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)]** , which reads as follows: 61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was M.A.C.A. Nos.659 & 700 of 2017 11 between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 10. In injury cases, the compensation is very high than that in death cases. In O.P.(M.V.) No.224 of 2014, the victim is still alive. Considering the employment M.A.C.A. Nos.659 & 700 of 2017 12 and his future prospects, the learned Tribunal rightly considered the multiplier method. In the absence of any specific reasons and evidence, I cannot accept the contention advanced by the appellant and the award in O.P.(M.V.) No.224 of 2014 is confirmed. 11. In O.P.(M.V.) No.226 of 2014 the injured is an agriculturist aged 44 years at the time of accident. The learned Tribunal awarded 50% towards future prospects but in view of **Pranay Sethi (Supra)** , he is entitled to get only 25% towards future prospects. If that be the position, the income will be Rs.9,375/- (7500+7500x25%) instead of Rs.11,250/-. Hence he is entitled to get only Rs.1,57,500/- (9375x12x14x10%) towards Permanent Disability. The learned Tribunal awarded Rs.1,89,000/-. Therefore, an amount of Rs.31,500/- has to be deducted from the award amount and the injured in O.P.(M.V.) No.226 of 2014 is entitled to get an amount of Rs.2,04,500/- (2,36,000-31,500) with 9% interest and proportionate cost as compensation. The insurer is directed to satisfy the awards in both cases within thirty M.A.C.A. Nos.659 & 700 of 2017 13 days from the date of receipt of a copy of this judgment failing which it will carry 12% interest from the date of default. These appeals are disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A.To Judge NS