The Oriental Insurance Company Limited v. E. Prabhakaran (MACA Nos. 2267 of 2007 and 847 of 2008)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY ,THE 31ST DAY OF AUGUST 2018 / 9TH BHADRA, 1940** ## **MACA.NO. 2267 OF 2007** **AGAINST THE AWARD IN O.P.(M.V.) NO.981/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 28-02-2007** **APPELLANT/3RD RESPONDENT :** **THE ORIENTAL INSURANCE COMPANY LIMITED, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI - 18.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER :** **E.PRABHAKARAN, S/O LATE APPU NAIR, 27/2747, "GAYATHRI", VIDYA NAGAR, KADAVANTHARA, KOCHI-20.** **(NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1,2 AND 4 IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT PARTIES IN THIS APPEAL.)** **BY ADVS. SMT.M.MANJU SRI.R.SUDHISH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.08.2018, ALONG WITH M.A.C.A. NO.847/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2267 OF 2007 &** **MACA.NO. 847 OF 2008 2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 31ST DAY OF AUGUST 2018 / 9TH BHADRA, 1940** **MACA.NO. 847 OF 2008** **AGAINST THE AWARD IN O.P.(M.V.) NO.981/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 28-02-2007** ## **APPELLANT/PETITIONER :** **E.PRABHAKARAN, AGED 50 YEARS, S/O.LATE APPU NAIR, 27/2747, "GAYATHRI", VIDYA NAGAR, KADAVANTHRA, COCHIN-20.** **BY ADVS. SRI.R.SUDHISSH SMT.M.MANJU** ## **RESPONDENTS/RESPONDENTS 1 & 2 :** - **1 RASHAMANI, S/O V.N. KRISHNA IYER, LIG 551, PANAMPILLY NAGAR, COCHIN-36.** **2 THE ORIENTAL INSURANCE CO.LTD., BY ITS REGL. MANAGER, REGL. OFFICE, GROUND FLOOR, METRO PALACE, OPP.NORTH RLY. STATION, COCHIN-18.** **(2[ND] RESPONDENT IN THE O.P. HAS BEEN DELETED BY THE TRIBUNAL AND NO RELIEF IS CLAIMED AGAINST 4[TH] RESPONDENT IN THE O.P.(M.V.), HENCE THEY ARE NOT ARRAYED AS RESPONDENTS).** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.08.2018 ALONG WITH M.A.C.A. NO.2267/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2267 OF 2007 &** ## **MACA.NO. 847 OF 2008 3** ## **JUDGMENT** These appeals are preferred against the award in O.P. (M.V.) No.981 of 2000 of the Motor Accidents Claims Tribunal, Ernakulam. M.A.C.A. No.2267 of 2007 was preferred by the insurer and M.A.C.A. No.847 of 2008 was preferred by the injured. On 29.10.1999 at 6.15 p.m., the appellant in M.A.C.A. No.847 of 2008 sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.1,95,334/(Rupees One Lakh Ninety Five Thousand Three Hundred and Thirty Four only) with 7.5% interest per annum from the date of petition till realisation. Being aggrieved by that, the injured preferred M.A.C.A. No.847 of 2008 and the insurer preferred M.A.C.A. No.2267 of 2007. 2. The accident was not disputed by the respondents in the lower court. The injured's case in the lower court was that on 29.10.1999 at 6.15 p.m., while he was riding a scooter KL-7/K-7921 through Panampilly Nagar and when he reached at Link road junction, another motorcycle KL-7/R-3712 ridden ## **MACA.NO. 2267 OF 2007 &** ## **MACA.NO. 847 OF 2008 4** in a rash and negligent manner hit against the claimant's motorcycle, as a result he sustained serious injuries. The driver and owner of the vehicle were ex parte in the lower court. The insurer admitted the insurance of the offending vehicle. R4 admitted the insurance of the vehicle KL-7/K-7921. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A12. 3. Learned counsel appearing for the appellant in M.A.C.A. No.2267 of 2007 contended that excess amount was awarded by the Tribunal towards disability compensation. The injured sustained 10% disability and there is no loss of earning in future but the compensation awarded for permanent physical disability was at a higher side. 4. Learned counsel appearing for the appellant in M.A.C.A. No.847 of 2008 contended that no amount was awarded towards pain and sufferings and a meagre amount was awarded towards loss of amenities. The injured also need future medical treatment which was also not considered by the Tribunal. ## **MACA.NO. 2267 OF 2007 &** ## **MACA.NO. 847 OF 2008 5** 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-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 **MACA.NO. 2267 OF 2007 &** **MACA.NO. 847 OF 2008 6** 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 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 **MACA.NO. 2267 OF 2007 &** **MACA.NO. 847 OF 2008 7** 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 injured is a senior Welder of the Cochin Shipyard. He was aged 42 years at the time of accident and was getting an amount of Rs.9,000/- per month. The learned Tribunal awarded the following amounts as compensation. |Head|Amount awarded| |---|---| |Transportation, damage to clothes, extra<br>nourishment and attendant expenses.|Rs.2,500.00| |Loss of earning<br>Supported by Exts.A7 & A8<br>a) For 4 days<br>3.10.99-2.11.99 Rs.1099.00<br>b) For 141 days<br>3.11.99-22.03.00 Rs.41301.00<br>c) For 17 days<br>10.5.2000-26.5.00 Rs.5034.00<br>--------------------<br>Rs.47,434.00|Rs.47,434.00| |Compensation for permanent physical disability<br>(9000x12x13x10%)|Rs.1,40,400.00| |Loss of amenities and convenience|Rs.5,000.00| |Total|Rs.1,95,334.00| 8. It is true that he is entitled to get some amount for pain and sufferings and for loss of amenities. Hence the following additional amounts is awarded as enhanced compensation to **MACA.NO. 2267 OF 2007 &** ## **MACA.NO. 847 OF 2008 8** the victim. Pain and sufferings Rs.15,000/- and Loss of amenities Rs.10,000/-. In the absence of any medical evidence, the claim for future medical treatment is declined. Accordingly, the appellant in M.A.C.A No.847 of 2008 is entitled to get an enhanced compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) with 9% interest and proportionate cost in addition to Rs.1,95,334/- (Rupees One Lakh Ninety Five Thousand Three Hundred and Thirty Four 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. No.2267 of 2007 filed by the insurer is hereby dismissed. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge