SREELAKSHMI.V.NAIR v THAJUKASIM and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **MACA.No. 1593 of 2016** **O.P(M.V)NO. 1252/2013 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** **----------** ## **APPELLANT(S)/PETITIONER :** **SREELAKSHMI.V.NAIR, AGED 24 YEARS, LAKSHMI NIVAS, PALARIVATTOM P.O., TRIPUNITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.T.R.SUGUNAN SMT.P.S.GEETHA KUMARY** **SMT.CINZIA RAJU** ## **RESPONDENT(S)/RESPONDENTS :** **1. THAJUKASIM,** - **H.NO.33/165 2F, VENNALA P.O., COCHIN, PIN-682 028.** ## **2. ABDULLA,** **S/O.MUHAMMED, KALLUNGACHIRAYIL HOUSE, CHANDIROOR P.O., AROOR VILLAGE, CHERTHALA, PIN-688 537.** **3. THE ORIENTAL INSURANCE CO. LTD, EBENEZAR GARDEN, NEAR HIGH SCHOOL JN., EDAPPALLY, REPRESENTED BY THE MANAGER, THIRD PARTY CELL, THE ORIENTAL INSURANCE CO. LTD, METRO PLAZA, WESTERN SIDE OF NORTH RLY. STATION, ERNAKULAM, KOCHI-18.** ## **4. RAJESH,** **S/O.BAHULEYAN, PARAYIL HOUSE, N.H.6/99, S.N.PURAM, THAIKKATTUKARA, ALUVA, PIN-683 106.** ## **5. JOJI.G.,** **S/O.GURUBACHAN LAL, ALACKAKUDIYIL HOUSE, CHELACHUVADU P.O., IDUKKI DISTRICT, PIN-685 606.** **6. BIJU, S/O.JOHN, H.NO.590/3, KODUVATHARA HOUSE, MADATHIPARAMBU, THRIKKAKARA, B.M.C P.O., KOCHI-682 021.** **..2/-** **..2..** ## **MACA.No. 1593 of 2016** **7. THE NEW INDIA INSURANCE CO. LTD., THIRD PARTY CELL, KOTTACKAL AYRA VYDHYASALA BUILDING, M.G.ROAD, ERNAKULAM- 682 011.** **R3 BY ADVS. SRI.R.PADMARAJ** **SRI.P.J.ANTONY JOSEPH MARIADAS** **R4,R5,R6 BY ADV. SRI.MATHEW ABRAHAM (OLIYIL) R7 BY ADV. SRI.P.K.BABU BY ADV. SRI.P.M.M.NAJEEB KHAN, S.C BY ADV. SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Msd.** **01.08.2018** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.1593 of 2016 ---------------------------------Dated this the 12[th] day of July, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1252 of 2013 of the Motor Accidents Claims Tribunal, Ernakulam by the injured. Appellant sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.2,48,430/- (Rupees Two Lakh Forty Eight Thousand Four Hundred and Thirty only) with 9% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal. 2. There are two vehicles involved in the accident. Claimant's case in the lower court was that on 06.03.2013 at 4.20 p.m., while she was travelling in an auto rickshaw KL-7/BD-2723 through Karakonam Pipe line road and when she reached near railway quarters junction, another goods autorickshaw KL-07/BL-5496 came from the opposite direction in a rash and negligent manner and collided with her vehicle, as a result she sustained serious injuries in the accident. The insurers R3 ## M.A.C.A. No.1593 of 2016 2 and R7 admitted the insurance of both the vehicles and attributed negligence to each other. The driver and owner of both vehicles R1 and R2 and R4 to R6 did not dispute the accident in the lower court. Claimant did not adduce any oral evidence, but her documents were marked as Exts.A1 to A12. The Disability Certificate was marked as Ext.X1. Respondents evidence consists of documentary evidence of Ext.B1. The learned Tribunal awaraded the following amounts as compensation. Loss of earnings Rs.36,000/-, Transport to hospital and back to home Rs.2,000/-, Extra nourishment Rs.3,000/-, Damage to clothes and articles Rs.2,000/-, Bystander expenses Rs.15,000/-, Medical expenses Rs.25,830/-, Compensation for pain and sufferings Rs.35,000/-, Compensation for continuing permanent/ partial disability Rs.1,29,600/-. The total compensation awarded by the tribunal is Rs.2,48,430/- (Rupees Two Lakh Forty Eight Thousand Four Hundred and Thirty only). 3. Learned counsel appearing for the appellant M.A.C.A. No.1593 of 2016 3 contended that the appellant is a disabled person by birth having 70% permanent disability. After the accident, her disability was assessed at 80%. She was working as a receptionist at Government Hospital, Ernakulam and was getting an amount of Rs.8,000/- per month, but the learned Tribunal took only Rs.6,000/- and just amount was not awarded by the tribunal as 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 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.** M.A.C.A. No.1593 of 2016 4 **[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 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 ## M.A.C.A. No.1593 of 2016 5 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. 7. The insurers have no dispute with regard to the disability. Ext.A3 wound certificate shows that the injured sustained serious fracture on right sacrum, fracture of superior and inferior pubic rami and unstable pelvic fracture. Her income was taken as Rs.6,000/- by the Tribunal. Now she is disabled and unable to do any work, hence, this Court is inclined to grant the following ## M.A.C.A. No.1593 of 2016 6 additional amounts as enhanced compensation to the victim. Considering the fact that the injured is a handicapped person and the injuries increased her disabilty from 70% to 80% (the increase is at 10%), an addition of 40% (6000x40%) of the income towards future prospects has to be added with the income and the total income will be Rs.8,400/- (6000+2400) and she is entitled to get an amount of Rs.1,81,440/- (8,400x12x18x10%) towards Permanent Disability. The learned Tribunal awarded Rs.1,29,600/- on that head. The balance is Rs.51,840/-. In addition to that, an amount of Rs.15,000/is awarded towards Loss of Amenities and an additional Rs.12,000/- is awarded towards Loss of income for two months. The total enhanced compensation will be Rs.78,840/- (Rupees Seventy Eight Thousand Eight Hundred and Forty only). Accordingly, the appellant is entitled to get an enhanced compensation of Rs.78,840/(Rupees Seventy Eight Thousand Eight Hundred and Forty only) with 9% interest and proportionate cost in addition to Rs.2,48,430/- (Rupees Two Lakh Forty Eight M.A.C.A. No.1593 of 2016 7 Thousand Four Hundred and Thirty only) awarded by the learned Tribunal. The insurers of both vehicle are directed to satisfy the award as decided by the Tribunal 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. NS Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge