The Oriental Insurance Company Limited v Jayachandran

**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. 2310 of 2015** **--------------------** **OP(MV) 18/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR. .......** **APPELLANT/3RD RESPONDENT: ------------------------** **THE ORIENTAL INSURANCE COMPANY LIMITED, THODUPUZHA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18.** **BY SRI.GEORGE CHERIAN (SENIOR ADVOCATE) ADVS. SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** **RESPONDENT/CLAIMANT:** **-------------------** **JAYACHANDRAN, S/O.BHASKARA PILLAI, VISHNU BHAVAN, KURIODU, CHADAYAMANGALAM, KOTTARAKKARA TALUK, PIN - 691 534.** **BY ADV. SRI.ANCHAL C.VIJAYAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/ 25.07.2018.** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.2310 of 2015 ---------------------------------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.18 of 2011 of the Motor Accidents Claims Tribunal, Punalur by the insurer. One Jayachandran sustained injuries in a motor accident on 18.04.2010 at 3.30 p.m., while travelling in a motorcycle KL-2/F-2849 and the learned Tribunal awarded Rs.12,33,500/- (Rupees Twelve Lakh Thirty Three Thousand Five Hundred only) with interest and cost as compensation. Being aggrieved by that, the insurer preferred this appeal. 2. In the lower court, claimant's case was that while he was riding a motor bike along Thiruvananthapuram-Kottarakkara and when he reached at the place of occurrence, a car KL-4/S-9835 driven in a rash and negligent manner hit against his vehicle, as a result, he sustained serious injuries. Immediately he was removed to hospital. The driver and owner were ex parte in the lower court. The insurer admitted the insurance of ## M.A.C.A. No.2310 of 2015 2 the vehicle. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A24. The Disability Certificate issued by Dr.Marthanda Pillai was marked as Ext.A18. 3. Learned counsel appearing for the appellant insurer contended that, at the time of accident the injured has remaining four years service in the Government department. Hence, while awarding compensation, split multiplier has to be taken. The multiplier and multiplicand adopted by the Tribunal are at a high side and the compensation awarded by the Tribunal has to be reduced. 4. 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 ## M.A.C.A. No.2310 of 2015 3 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.” 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. M.A.C.A. No.2310 of 2015 4 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 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. Now the question is whether split multiplier can be taken for calculating disability compensation after ## M.A.C.A. No.2310 of 2015 5 retirement of a Government Servant. In **Kumaran** V. **Roy Mathew [2017 (1) KLT 668],** this Court held that in exceptional circumstance the Court can deviate from the multiplier method. Apex Court in **General Manager,** **Kerala State Road Transport Corporation** v. **Susamma Thomas [(1994) (1) KLT 67 (SC)]** and in **Sarla Verma** v. **Delhi Transport Corporation 2010 (2) KLT 802 (SC)** adopted the multiplier method. No circumstances are brought before me to deviate from the multiplier method by taking a split multiplier. It is true that, the injured was working as an Assistant Engineer in KSEB in the year 2010. After his retirement also, as an Assistant Engineer he can earn more income. Considering that position, the learned Tribunal declined to adopt split multiplier and took Rs.10,000/- as his monthly income for calculating disability compensation. The injured sustained a Neurological disability at 20%. If that be the position, it will surely increase in future and no circumstances are brought before me to take a split multiplier. M.A.C.A. No.2310 of 2015 6 7. Learned counsel appearing for the appellant submitted that the Tribunal awarded an amount of Rs.3,58,420/- towards Loss of Earning. As per Ext.A19 Certificate, the actual loss on commuted leave, half pay leave, leave without allowance was only One Lakh Rupees. I have verified Ext.A19 in which it is seen that the claimant got lesser salary from 7/2010 to 11/2011, the total amount was Rs.80,000/- along with that adding Earned Leave amount of Rs.98,534/-, the total is Rs.1,78,142/- as per Ext.A19. Since the Earned Leave Credit account is not furnished by the claimant, it is not possible to assess the loss of income on that leave account. Hence, the excess amount of Rs.1,80,278/- has to be deducted from the total award amount. The balance is Rs.10,53,222/-. Accordingly, the claimant is entitled to get a total compensation of Rs.10,53,222/- (Rupees Ten Lakh Fifty Three Thousand Two Hundred and Twenty Two only) with 9% interest per annum from the date of petition till realisation with proportionate cost. The insurer is directed to satisfy the award within a period of M.A.C.A. No.2310 of 2015 7 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. This M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge