Vishnu Raveendran v. Sunil, N.R. Rajendran and The Branch Manager, United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 11TH DAY OF OCTOBER 2018 / 19TH ASWINA, 1940** ## **MACA.NO. 1334 OF 2012** **AGAINST THE AWARD IN O.P.(M.V.) NO.437/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 30-04-2011** ## **APPELLANT/PETITIONER :** **VISHNU RAVEENDRAN, AGED 21 YEARS, S/O.LATE RAVEENDRAN, VALPUPARAMBIL, VENGAL MURI, ALUMTHURUTHY P.O., KAVUMBHAGOM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.ABDUL JALEEL.A** ## **RESPONDENTS/RESPONDENTS:** - **1 SUNIL, S/O.ANANDHAN, NADAYIL AYYATHU HOUSE, ALUMPEEDIKA, PRAYAR THEKKU MURI, KLAPPANA VILLAGE, KARUNAGAPPALLY TALUK-690518.** - **2 N.R.RAJENDRAN, S/O.RAHAVAN, NADAYASSERIL HOUSE, SOUTH KOCHUMURI, OACHIRA, PIN 690518.** - **3 THE BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD., T.M.BUILDING, BANK ROAD, KAYAMKULAM-690502.** ## **BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 1334 of 2012** **2** ## **JUDGMENT** This appeal is preferred against the award in O.P.(M.V.) No.437 of 2003 of the Motor Accidents Claims Tribunal, Pathanamthitta by the injured. On 19.09.2002 the minor Vishnu Raveendran sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.6,81,750/(Rupees Six Lakhs Eighty One Thousand Seven Hundred and Fifty only) with 7.5% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal. 2. It would be relevant to mention the facts leading to the accident. On 19.09.2002 at 4.15 p.m., the appellant was riding a bicycle through Thiruvalla-Mavelikkara public road, when he reached near DBHSS, Kavumbhagam, a bus KL-7/K-9590 driven in a rash and negligent manner and hit against the bicycle. As a result, he sustained serious injuries, immediately he was removed to Pushpagiri Hospital, Thiruvalla. The driver and owner of the vehicle were ex parte in the lower court. The insurer admitted the insurance of the vehicle. Claimants did not adduce any oral evidence, but his documents were marked as Exts.A1 to A33. **MACA.No. 1334 of 2012** **3** ## 3. The Tribunal has arrived the following amounts as compensation: |Sl.<br>No<br>.|Head of claim|Amount<br>claimed(in<br>Rs.)|Amount<br>awarded<br>(in Rs.)|Basis<br>vital<br>details in a nut<br>shell| |---|---|---|---|---| |1|Pain and sufferings|3,24,000/-|1,00,000/-|| |2|Loss of amenities of life,<br>inconvenience<br>and<br>discomforts caused.|1,00,000/-|50,000/-|| |3|Medical and treatment<br>expenses|3,00,000/-|1,76,600/-|Ext.A17 to A27<br>series and A30<br>& A31.| |4|Expenses<br>for<br>physiotherapy treatment|Nil|1,15,650/-|Ext.A29 series| |5|Transportation expenses|10,000/-|15,000/-|-| |6|Bystander expenses|3,000/-|14,000/-|139 days I.P.| |7|Extra nourishment|10,000/-|5,000/-|| |8|Damage to clothing|3,000/-|500/-|| |9|50% disability caused|3,00,000/-|1,80,000/-|Ext.A7| |10|Future treatment|50,000/-|25,000/-|| |11|Loss of earning power|1,00,000/-|Nil|| ||Total|12,00,000/-|6,81,750/-|| 4. Learned counsel appearing for the appellant contended that the injured was a minor, studying in 10[th] standard at the time of accident and he became permanently disabled due to the accident. There was serious injuries like sub dural hematoma left frontal parietal area. He was treated at Medical College Hospital, Pushpagiri and Indo-American Hospital at Vaikom. The District Medical Board assessed the disability at 50% and meagre amount was awarded as compensation. **MACA.No. 1334 of 2012** **4** 5. Learned counsel appearing for the insurer contended that in view of **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Anr.** [ **2013 ACJ 2445] : [AIR 2014 (SC) 736]** , just amount was awarded by the Tribunal. ## 6. Apex Court in **R.D. Hattangadi** Vs. **M/s. Pest Control (India) Pvt. Ltd. and others [1995 ACJ 366]** held that: “Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e., on account of injury the claimant may not be able to walk run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, **MACA.No. 1334 of 2012** **5** disappointment frustration and mental stress in life.” It is an admitted fact that the injured was a student in 10[th] standard and having disability of 50% on account of the injuries sustained in the accident. In the lower court judgment it is stated that the injured has some difficulty to walk and to speak. In the Disability Certificate, it is recorded that the injured found handicapped by post head injury sequela right hemiparasis. In this situation, it is difficult for him to continue a normal life and to assess the amount of compensation on various heads; such as pain and sufferings, the mental agony and loss of amenities since he is a life long handicapped person. ## 7. Apex Court in **Rajkumar** v. **Ajay Kumar and Anr.** **[2011 ACJ 1]** held that the injured is entitled to get just amount of compensation which reads as follows: (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 **MACA.No. 1334 of 2012** **6** 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. 8. The treatment records were marked in the lower court. Ext.A14 series are discharge summary issued from Indo-American Hospital, Vaikkom. Ext.A14(1) is for the period 23.10.2002 to 04.01.2003 (73 days IP). Ext.A14(2) is for the period 20.01.2003 to 22.01.2002 (2 days IP). Ext.A14(3) is for the period 26.01.2003 to 6.02.2003 (11 days IP). Ext.A14(4) is for the period 12.02.2003 to 25.02.2003 (13 days IP). Ext.A14(5) is for the period 08.03.2003 to 25.03.2003 (17 days IP). A reading of Ext.A11, A12 and Ext.A14 series discharge summary show that the injured was treated as an inpatient in three different hospitals for a total period of 139 days. Diagnosis noted in Ext.A14 series is as follows;- (1) Post **MACA.No. 1334 of 2012 7** head injury sequalae status (left) parietal cranlectomy & Evacuation of left SDH. (2) (Left) and (right) VP shunt and Endoscopic III Ventriculostomy with (right) residual hemi paresis. The details of the treatment done are described in Ext.A14 series. The medical certificate issued from Indo American Hospital, Vaikkom dated 9[th] November, 2007 was marked as Ext.A15. Post head injury sequalae is noted in Ext.A15 also. Ext.A16 series are the prescriptions issued from Indo-American hospital Vaikkom. From Ext.A16 series prescription it can be seen that even now petitioner is undergoing treatment. The latest prescription present in Ext.A16 series is dated 10.03.2011. The EEG report of the injured petitioner issued from Indo American hospital dated 11.10.2010 was marked as Ext.A32. Ext.A33 is the treatment certificate issued from Indo American hospital dated 24.03.2011. In Ext.A33 it is stated that the injured petitioner is now aged 23 years and he is having post head injury sequalae for which he needs follow up medication. From the treatment records it is clear that as a result of the accident petitioner sustained serious head injury and it continues even **MACA.No. 1334 of 2012 8** now. That means even after Nine years of the accident treatment is continuing. 9. 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 **MACA.No. 1334 of 2012** **9** 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.” 10. 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 **MACA.No. 1334 of 2012** **10** 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. 11. In this context, I have considered the arguments advanced by the learned counsel appearing for the respondents. Apex Court in **Master Mallikarjun v. Divisional** **Manager, The National Insurance Company Limited and Anr.** [ **2013 ACJ 2445]** held as follows: Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. ” 12. The Medical Board assessed the disability of the appellant at the rate of 50 percentage. Considering the nature **MACA.No. 1334 of 2012 11** of injury and the sufferings that he is undergoing, he is entitled to get just amount as compensation. The increase in the standard of living and future increase in the price index have to be considered while awarding compensation. The decision of the Apex Court in **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Anr.** [ **2013 ACJ 2445]** and the decision in **V. Mekhala v. M. Malathi and another [(2014) 11 Supreme Court Cases 178],** are relevant to award just amount as compensation. Hence his monthly income is taken as Rs.5,000/-. The injured was 16 years at the time of accident, then the multiplier is 18 in view of **Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104).** Accordingly, the disability compensation is Rs.5,000x12x18x50/100=Rs.5,40,000/-. The learned Tribunal awarded Rs.1,80,000/- on that head. The balance is Rs.3,60,000/-. In addition to that, an amount of Rs.1,00,000/- is awarded for pain and suffering, Rs.1,00,000/is awarded for loss of amenities, Rs.25,000/- is awarded for future medical treatment and Rs.1,00,000/- is awarded for loss of study. Accordingly, the appellant is entitled to get **MACA.No. 1334 of 2012 12** Rs.6,85,000/- (Rupees Six Lakhs Eighty Five Thousand only) with 9% interest and proportionate cost as enhanced compensation 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** NS /True Copy/ P.A. To Judge