Vasudevan Pillai v Soni P. Mani Palikkattu and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940** **MACA.No. 55 of 2016** **--------------------** **OP(MV) 493/2012 OF III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM. ......** ## **APPELLANT/PETITIONER:** **---------------------** **VASUDEVAN PILLAI, AGED 60 YEARS, S/O.SANKARA PILLAI, OOPPANVILAYIL VEEDU, ARINALOOR MURRI, THEVALAKKARA, KARUNAGAPPALLY TALUK.** **BY ADVS.SRI.C.RAJENDRAN SRI.K.R.RANJITH** **RESPONDENT(S)/RESPONDENTS:** **-------------------------** **1. SONI P. MANI PALIKKATTU, ELAPPALLY, MOOLAMATTAM, IDUKKI-685 589.** **2. PRAJEESH CHANDRAN P.V. S/O.PRASAD CHANDRAN NAIR, PREETHA BAHVANAM, THOTTUMUGHAM, MYNAGAPPALLY, KUNNATHOOR-690 519.** **3. THE BRANCH MANAGER, RELIANCE INSURANCE COMPANY LTD., VARINJAM TOWER, KOLLAM-691 001. R3 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/ 18.07.2018.** ## **P.D. RAJAN, J. -----------------------M.A.C.A. No.55 of 2016 ---------------------------------Dated this the 19[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.493 of 2012 of the Additional Motor Accidents Claims Tribunal-III, Kollam by the injured. Appellant sustained injuries in a motor accident on 29.12.2011 at 11.30 p.m., and the learned Tribunal awarded compensation of Rs.2,20,000/- (Rupees Two Lakh Twenty Thousand only) with interest and cost as compensation. Being aggrieved by that, the injured preferred this appeal. 2. Claimant's case in the lower court was that while he was standing in the premises of his work place namely Bhavani Traders, Karunagappally, a car KL-05/X-3565 driven in a rash and negligent manner knocked down him as a result he sustained serious injuries. Immediately he was removed to Taluk Head Quarters Hospital, Karunagapply and subsequently he was treated at A.M. Hospital, Karunagappaly. The driver ## M.A.C.A. No.55 of 2016 2 and owner were ex parte. The insurer admitted the insurance of the vehicle. The claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A13. 3. Learned counsel appearing for the appellant contended that the injured sustained serious injuries in the accident and he is permanently disabled. The Medical Board certified 50% disability and the learned Tribunal reduced it to 10% and a meagre amount was awarded as compensation. 4. 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 nonpecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into ## M.A.C.A. No.55 of 2016 3 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.” ## 5. Ext.A11, the Disability Certificate issued by ## Superintendent, A.D.Rahim Memorial, Government M.A.C.A. No.55 of 2016 4 District Hospital, Kollam, shows 50% disability to the appellant. The Disability Certificate was issued by the Medical Board consisting of members of Physiatrist (PMR), Orthopaedist, Opthalmologist, ENT Surgeon and Psychiatrist. Without considering the observation made by the Medical Board, Tribunal reduced the disability to 10%, which is illegal and against the decision of the Apex Court in **Raj Kumar** v. **Ajay Kumar 2011 (1) KLT 620(SC),** in which, it was held in paragraphs 12 and 13 as follows: 12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and ## M.A.C.A. No.55 of 2016 5 assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 13.We may now summarize the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 6. In a Motor Accident Claim Petition, if the M.A.C.A. No.55 of 2016 6 Tribunal is not satisfied with the Disability Certificate produced from the Medical Board, it can direct the injured to State Medical Board for assessing the disability. Such an attempt was not done in this case. Therefore the appellant is entitled to get compensation for 50% disability. 7. 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 M.A.C.A. No.55 of 2016 7 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. 8. The injured was a Watchman and was getting Rs.6,000/- per month, but the learned Tribunal took only Rs.5,000/- as his monthly income. He was aged 60 years at the time of accident, the multiplier is 9. Since the appellant is an aged man and sustained 50% disability, it will affect his earning capacity. Hence, he is entitled to get an amount of Rs.2,70,000/- (5000x12x9x50%) for Permanent Disability. Learned Tribunal awarded Rs.42,000/- on that head and the balance is Rs.2,28,000/(Rupees Two Lakh Twenty Eight Thousand only). Accordingly, the appellant is entitled to get an enhanced compensation of Rs.2,28,000/- (Rupees Two Lakh Twenty Eight Thousand only) with 9% interest per annum from the date of petition till realization with proportionate cost, in addition to Rs.2,20,000/- (Rupees Two Lakh Twenty Thousand only) awarded by the learned Tribunal. M.A.C.A. No.55 of 2016 8 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. NS Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge