Sudhakaran v. Baiju G. S/o Gopi; CA Nizar; The Manager, New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940** **MACA.No. 2062 of 2012** **AGAINST THE AWARD IN OPMV 1031/2002 of MACT, MAVELIKKARA DATED 20-04-2012** ## **APPELLANT/PETITIONER** ## **SUDHAKARAN** **S/O.KARUNAKARAN, JAIKISH BHAVAN, CHUNAKKARA NADUVIL, CHUNAKKARA NADUVIL, CHUNAKKARA, MAVELIKKARA.** **BY ADVS.SRI.R.PADMAKUMAR SRI.P.ARAVIND** ## **RESPONDENTS/RESPONDENTS:** **1. BAIJU G. S/O.GOPI, KARUKAYIL HOUSE, PALLIPPAD, HARIPAD, PIN-690514.** **2. C.A. NIZAR** **KUNNUMPARAMBIL HOUSE, AVOLY PANCHAYATH,** **MUVATTUPUZHA, ERNAKULAM, PIN-696661.** **3. THE MANAGER** **NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, KAYAMKULAM-690502.** **R33 BY ADV. SRI.GEORGE CHERIAN (SR.)** **R3 BY ADV. SMT.K.S.SANTHI** **R3 BY ADV. SMT.LATHA SUSAN CHERIAN R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BNG** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.2062 of 2012 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 31[st] day of July, 2018 ## **JUDGMENT** This appeal is preferred against the award in O.P. (MV)No. 1031/2002 of the Motor Accidents Claims Tribunal, Mavelikara by the injured. The appellant sustained injuries in a motor accident on 26.01.2002 and the learned Tribunal awarded compensation of Rs.2,27,000/- with 7.5% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal. 2. The claimant's case in the lower court was that on 26.01.2002, he was driving a car KL-4G-3314 through Mankamkuzhy - Charummood public road, when he reached at south of Chunakkara Panchayath Office junction, a bus KL-7J/9855 driven in a rash and negligent manner hit against the car, as a result, the appellant and other passengers in the car sustained injuries and one passenger died. Immediately, he was removed to hospital. The driver and owner were set exparte in the lower court. The insurer admitted the insurance of the vehicle. The claimant's evidence consist of oral testimony of PW1 and documentary evidence consist of Exts.A1 to A22. ## **M.A.C.A No.2062 of 2012** **-2-** The disability certificate was marked as Ext.X1. Respondents examined DW1 and DW2. The learned Tribunal awarded the following amount as compensation. |1. Loss of earnings|Rs.18,000/-| |---|---| |2. Loss of earnings (partial)|Not allowed| |3. Medical and miscellaneous expenses|Rs.69,800/-| |4. Bystander's expenses|Rs.3,200/-| |5. Transportation charges|Rs.1,050/-| |6. Extra nourishment|Rs.3,000/-| |7. Damage to clothing, etc|Not allowed| |9. Pain and sufferings|Rs.30,000/-| |10. Loss of consortium|---| |11. Loss of marriage prospectus|----| |12. Loss of earning power|----| |13. Disability income|Rs.90,000/-| |14. Loss / reduction in earning capacity|-----| |15. Loss of amenities and convenience etc|Rs.10,000/-| |16. Any other heads (review statement)|Rs.2,000/-| |**Total**|**Rs.2,27,050/-**| |**Rounded to**|**Rs.2,27,100/-**| 3. The learned counsel appearing for the appellant contended that the injured is a driver by profession and he sustained injuries while driving a car. He sustained ## **M.A.C.A No.2062 of 2012** **-3-** permanent disability of 76%, but the learned Tribunal took only 25% for assessing the disability compensation. The appellant was getting Rs.7,500/- per month from his occupation and the learned Tribunal took only Rs.3,000/- as the monthly income and awarded a meagre amount. 4. 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 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 ## **M.A.C.A No.2062 of 2012** ## **-4-** 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.” 5. 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 ## **M.A.C.A No.2062 of 2012** **-5-** 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. ## 6. 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 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_ ## **M.A.C.A No.2062 of 2012** ## **-6-** _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._ The learned counsel appearing for the appellant contended that the total disability was 70% ENT. There is impairment of hearing right ear 67.5% and left ear 100%. 7. In this context, I have examined Ext.A15 copy of disability certificate, Medical Board, T.D. Medical College Hospital, Alappuzha certified the disability. The appellant has 1) hearing impairment bilaterally 2) memory loss, 3) stiffness of lower limbs, 4) recent memory loss 10%, 5) ENT right 67.5% and left 100% and total 73%. As a result of the above said injuries, the Board examined the injured and opined that the appellant is having 76% of permanent partial disability. The Doctor of ENT, Neurosurgery, ophthalmology, Orthopedic ## **M.A.C.A No.2062 of 2012** **-7-** and PMR examined injured and certified 73%. PW1 and PW2 rebuttal evidence and respondents examined DW1 and DW2. DW1 opined that total disability at 76%. In the absence of examination by a another Medical Board, the reduction of disability from 76% to 25% is illegal. Normally mere production of a disability certificate will not be a proof of the disability stated therein. The Doctors, who treated the claimant or issued the disability was examined by the respondents before the Tribunal. Satisfactory evidence was not found in the oral testimony to reduce the the disability from 76% to 25%. If that be the position, the disability assessed by the Medical Board is to be considered for assessing the disability compensation. There was permanent stiffness to his lower limbs and loss of hearing will accelerate the disability in future. If that be the position, he is entitled to get 76% disability. 8. In view of _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057),**_ the monthly income of Rs.5,500/- is just and reasonable. Along with that 10% is to be added towards future prospects. The total income is Rs.5,500+550= Rs.6,050/-. The total disability compensation ## **M.A.C.A No.2062 of 2012** **-8-** is Rs.6,050x12x11x76/100=Rs.6,06,936/-. The learned Tribunal awarded Rs.90,000/- and the balance amount is Rs.5,16,936/-. In addition to that, Rs.20,000/- is awarded for pain and suffering, Rs.20,000/- is awarded for loss of amenities, another Rs.5,000/- for extra nourishment, loss of income for six months additional Rs.15,000/- and for future medical treatment another Rs.25,000/-. Therefore, the appellant is entitled to get additional compensation of Rs.6,01,936/- (Rupees Six Lakh One Thousand Nine Hundred and Thirty Six only) with 9% interest from the date of petition till realisation with proportionate cost in addition to the award amount. The insurer 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. This appeal is disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng