High Court of KeralaSingle Judge2018-07-18M.A.C.A is disposed of as above. Enhanced compe...

S.Sajitha v. Oriental Insurance Co. Ltd.

Case / Petition Number:MACA.No. 173 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2018-07-18
Court Decision / Holding: The High Court enhanced the claimant’s compensation by Rs. 3,91,665 over and above the Tribunal’s award, applying 9% interest and proportionate costs, with the insurer directed to satisfy the enhanced amount within 30 days of receipt of the judgment, failing which 12% interest would accrue from the date of default. The MACA is disposed of accordingly.
Final Disposition: M.A.C.A is disposed of as above. Enhanced compensation awarded and insurer directed to pay within 30 days; default interest provisions apply.

Parties to the Case

Appellants / Petitioners

S.Sajitha, D/O. Swaminathan, Aged 37 years, Maniyamkadu House, Kadamkode, Karinkarapully P.O., Palakkad-678 551

Respondents

The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Binoy Vasudevan
• Sri. R. Manikantan

Counsels for Respondents

• Smt. K.S. Santhi

Case Synopsis & Summary

This motor accident claims appeal arises from a Tribunal award in OP(MV) No.5/2014 at Palakkad granting Rs. 8,85,000 with 9% interest and proportionate costs to S. Sajitha, who sustained serious injuries when the jeep KL-9/K-115 was struck by a rashly driven car at Puthoor junction on 25 May 2012. The insurer admitted the vehicle’s insurance; the driver and owner were ex parte. The Tribunal assessed various heads of compensation, including loss of earning, medical expenses, future medical expenses, pain and suffering, disfiguration, and loss of amenities. It treated permanent disability as 30% (though medical board had assessed 36.06%), and relied on the multiplier/multiplicand approach to compute pecuniary loss. The appellant contends the award undervalued the injuries and disability, particularly given she was a teacher who lost employment and the disability was substantial. The Supreme Court's principles in Yadava Kumar v. D.M. National Insurance Co. Ltd. and National Insurance Company v. Pranay Sethi were cited to justify the multiplier method and the enhancements peculiar to permanent disability, including an additional assessment of pain and suffering and loss of amenities. The High Court ultimately enhances the compensation by Rs. 3,91,665 over and above the Tribunal’s award, applying 9% interest and costs, directing the insurer to pay within 30 days, else 12% interest. The MACA is disposed of accordingly, thereby increasing the claimant’s overall recovery.

Legal Doctrines & Maxims

Full and fair compensation principle in personal injury cases
Multiplier method for assessing damages
Convention basis of assessing compensation: multiplier of multiplicand
Established income means income minus tax component (as referenced in the discussion on computation)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the injured, a teacher by profession, lost her job following the accident. Her permanent disability was assessed at 36.06% by the Medical Board, but the Tribunal capped it at 30%. Amounts awarded for pain and suffering and loss of amenities are claimed to be too low. The appellant invokes the multiplier principle and argues for higher compensation reflecting the actual loss, life-long impairment, and the higher earnings that accompany a teaching profession.

Contentions of Respondents

The insurer submits that the Tribunal’s computation was reasonable, supported by medical evidence, and that the existing award already reflects compensation for disability. The evidence and statutory framework justify the assessed heads of damage and the 9% interest with costs; no basis is shown to disturb the Tribunal’s conclusions, especially regarding the degree of permanent disability and related damages.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Yadava Kumar v. D.M. National Insurance Co. Ltd.	2010 (8) SCALE 567	Positive	Apex Court reaffirmed the principle of calculating damages for personal injury using the multiplier approach and the aim of full and fair compensation.
National Insurance Company v. Pranay Sethi	2017 (4) KLT 622 (SC)	Positive	Cited for the multiplier framework and the 40% addition concept for self-employed claimants under certain age categories; used to adjust disability compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940** **MACA.No. 173 of 2018** **O.P(M.V)NO. 5/2014 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD** **----------** ## **APPELLANT(S)/PETITIONER :** **S.SAJITHA, D/O. SWAMINATHAN, AGED 37 YEARS, MANIYAMKADU HOUSE, KADAMKODE, KARINKARAPULLY P.O., PALAKKAD-678 551.** **BY ADVS.SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN** ## **RESPONDENT(S)/3RD RESPONDENT :** **THE ORIENTAL INSURANCE CO. LTD., SOBHA TSM COMPLEX, R.S. ROAD, OPPOSITE TOWN RAILWAY STATION, PALAKKAD-678 001.** **BY ADV. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **03.08.2018** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.173 of 2018 ---------------------------------Dated this the 18[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.5 of 2014 of the Motor Accidents Claims Tribunal, Palakkad by the injured. Claimant's case in the lower court was that on 25.05.2012, while she was travelling in a jeep KL-9/K-115 and when they reached at Puthoor junction, another car MH-06/AB-9398 driven in a rash and neglignet manner hit against the jeep as a result, the appellant sustained serious injuries in the accident and the learned Tribunal awarded compensation of Rs.8,85,000/- (Rupees Eight Lakh Eighty Five Thousand only) with 9% interest and proportionate. Being aggrieved by that, she preferred this appeal. 2. In the lower court, the driver and owner of the vehicle were exparte. The insurer admitted the insurance of the vehicle. O.P.(M.V.) No.5 of 2014 was tried along with O.P.(M.V.) No.103 of 2014 and the evidence consists of oral testimony of PW1 and M.A.C.A. No.173 of 2018 2 documentary evidence of Exts.A1 to A26 Series. The Disability Certificate was marked as Ext.X1. The learned Tribunal awarded the following amounts as compensation. |Sl. No.|Head of Claim|Amount Claimed (in Rupees)|Amount awarded ( in Rupees)|Basis-Vital Detalis in a nutshell| |---|---|---|---|---| |1|Loss of earning|168000|40380|5mx8076| |2|Partial loss of earning|-|–|-| |3|Transportation to hospital|50000|10000|Reasonable amount awarded| |4|Extra nourishment|15000|5000|Reasonable amount awarded| |5|Damages to clothing and other personal articles|1000|500|Reasonable amount awarded| |6|Expenses of a Bystander|150000|13000|52dx250| |7|Medical expenses|160000|225000|Medical bills for Rs.207773/- produced| |8|Future medical expenses|100000|30000|Reasonable amount awarded| |9|Compensation for pain and suffering|100000|60000|Reasonable amount awarded| |10|Compensation for permanent Disability|1428000|466108|8076x12x16x 30.06%| |11|Compensation for loss of earnign power|-|-|-| |12|Loss of expectation of life|-|-|-| |13|Compensation for disfiguration|50000|-|Not awarded| M.A.C.A. No.173 of 2018 3 |14|Compensation for loss of amenites and enjoyments in life|100000|35012|Reasonable amount awarded| |---|---|---|---|---| ||**Total** **Claim restricted** **to**|**1678000** **2187000**|**885000**|With interest @ 9% per annum & proportionate cost from the date of petition| 3. Learned counsel appearing for the appellant contended that the injured was a Teacher at Amritha Vidhyalaya and after the accident, she lost her job. She sustained permanent disability at 36.06%, but the learned Tribunal reduced the disability to 30% and very low amount was awarded as compensation. Moreover, the amount awarded towards Pain and Sufferings and Loss of amenities are very low. 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 non- M.A.C.A. No.173 of 2018 4 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 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.” M.A.C.A. No.173 of 2018 5 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. 7. The injuries mentioned in Ext.A6 wound certificate and Ext.A7 discharge summary are lacerated ## M.A.C.A. No.173 of 2018 6 wound on left side of forehead 5x1x1 cm, lacerated wound just below left knee 10x4x4 c.m with bone exposure and fracture, lacerated wound on left thigh 2x1 cm, 1x1 cm (deep wound). Severe head injury with polytrauma, left frontal bone fracture with bilateral frontal contusion with mild cerebral oedema, multiple facial bone fractures, type I open fracture distal third humerus left, type II open supracondylar fracture femur right type II open fractue, proximal tibia left, type III open comminuted fracture left patella, type III open supracondylar intercondylar fracture femur left, left AC joint dislocation. After discharging from the hospital, there was mal-united fracture left humourous. Ext.A9 discharge summary shows that she was hospitlised from 29.10.2012 to 01.11.2012. Ext.A16 discharge summary shows that she was admitted in the hospital on 23.04.2014 and discharged on 26.04.2014. Diagnosis shows that implant removal from left distal femur, proxial tiba and left humerus. The Medical Board assessed her disability at the rate of 36.06% and Ext.X1 corroborating ## M.A.C.A. No.173 of 2018 7 her disability. She was a Physical Education Teacher and was getting an amount of Rs.8,076/- per month. 8. Apex Court in **National Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)]** held as follows: 61. In view of the aforesaid analysis, we proceed to record our conclusions:- ## xxxx (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. ” While adding 40% (8,076x40%) of the established income, the income comes to Rs.11,306/- (8,076+3230.4). Hence, the appellant is entitled to get an amount of Rs.7,82,773/- (11306x12x16x36.06%) towards Permanent Disability. The learned Tribunal awarded Rs.4,66,108/on that head. The balance is Rs.3,16,665/-. Considering her present condition, there is severe pain and loss of ## M.A.C.A. No.173 of 2018 8 enjoyment in life. In the circumstance, an additional amount of Rs.40,000/- is awarded for Pain and Sufferings and an amount of Rs.35,000/- is awarded for Loss of amenities. The total enhanced compensation is Rs.3,91,665/- (Rupees Three Lakh Ninety One Thousand Six Hundred and Sixty Five only). Accordingly, the appellant is entitled to get an enhanced compensation of Rs.3,91,665/- (Rupees Three Lakh Ninety One Thousand Six Hundred and Sixty Five only) with 9% interest and proportionate cost in addition to Rs.8,85,000/- (Rupees Eight Lakh Eighty Five Thousand 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, 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** NS /True Copy/ P.A. To Judge