Sudheesh v. Nagaraj, G. Sridhar and United India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 6TH DAY OF JUNE 2018 / 16TH JYAISHTA, 1940** **MACA.NO. 1253 OF 2009** **AGAINST THE AWARD IN O.P.(M.V.) NO.278/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI DATED 25-09-2007** **---------------------------** ## **APPELLANT(S)/PETITIONER :** **----------------------** **SUDHEESH, AGED 26 YEARS, S/O SUKUMARAN, PATTANKADA HOUSE, ALIPARAMBA P.O., (VIA) ANAMANGAD, MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.P.VENUGOPAL (1086/92)** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. C.NAGARAJ, S/O. CHINNAYYAN PILLAI, 17/18 CROSS CUT ROAD, KUNIYAMBATHOOR, COIMBATORE-8.** **2. G.SRIDHAR, S/O. G.GANGAYAN, 8/284,THUVACHODE KAKKAYUR, KODUVAYUR, PALAKKAD DISTRICT.** **3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE 448A, DR.NANJAPPA ROAD, COIMBATORE-18.** **R3 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. No.1253 of 2009 ---------------------------------Dated this the 6[th ] day of June, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P. (M.V.) No.278 of 2003 of the Motor Accidents Claims Tribunal, Manjeri by the injured. Appellant sustained injuries in a motor accident and the learned Tribunal awarded Rs.1,98,205/- (Rupees One Lakh Ninety Eight Thousand Two Hundred and Five only) as compensation. Being aggrieved by that, the injured preferred this appeal. 2. There was no dispute with regard to the accident in the lower court. The driver and owner were ex parte. Insurer admitted the insurance of the vehicle. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A7. The Disability Certificate was marked as Ext.X1 which shows 17% disability. 3. Learned counsel appearing for the appellant contended that the appellant was a Coolie by profession and was getting an amount of Rs.3,000/- per month, but ## M.A.C.A. No.1253 of 2009 2 the learned Tribunal awarded a meagre amount as compensation. 4. In permanent injury case, the injured is entitled to get higher income than 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-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 ## M.A.C.A. No.1253 of 2009 3 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 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 ## M.A.C.A. No.1253 of 2009 4 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. ## 6. 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:- (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 between 40 to 50 years. In case the deceased was between ## M.A.C.A. No.1253 of 2009 5 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. 7. The appellant was aged 19 years at the time of accident and the multiplier is 18. In view of **National Insurance Company V. Pranay Sethi [2017 (4) KLT** **622 (SC)]** 40% of the income has to be added. Hence the ## M.A.C.A. No.1253 of 2009 6 income comes to Rs.4,200/- (3,000+1,200). The injured sustained 17% disability. Accordingly, an amount of Rs.1,54,224/- (4200x12x18x17%) is awarded for Permanent Disability. The learned Tribunal awarded Rs.69,360/- on that head. The balance is Rs.84,864/-. The Tribunal awarded Rs.24,000/- for loss of income for one year. Considering his monthly income as Rs.3,000/-, he is entitled to get Rs.36,000/- for loss of income. Accordingly, he is entitled to get an additional compensation of Rs.12,000/- on that head. The total enhanced compensation is Rs.96,864/- (Rupees Ninety Six Thousand Eight Hundred and Sixty Four only). 8. The appellant is entitled to get an enhanced compensation of Rs.96,864/- (Rupees Ninety Six Thousand Eight Hundred and Sixty Four only) with 7% interest per annum from the date of petition till realisation with proportionate cost in addition to Rs.1,98,205/- (Rupees One Lakh Ninety Eight Thousand Two Hundred and Five only) awarded by the learned Tribunal. Insurer is directed to satisfy the award within a M.A.C.A. No.1253 of 2009 7 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. The appellant is not entitled to get any interest for the delay period. This M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ NS P.A. To Judge