Allowed

Abdul Rasheed v. the National Insurance Co. Ltd.

Kerala HC3 Dec 2018MACA/1097/2015

Case brief

AI extract

What is this about?

The Appellate Court enhanced compensation for an injured pillion rider in a motor accident. It awarded additional amounts for pain and suffering and permanent disability, directing the insurer to pay within 30 days.

What did the court decide?

Award of Rs. 10,000 for pain and suffering and Rs. 25,000 for permanent disability added to the earlier award; insurer directed to pay within 30 days.

Abdul Rasheed Vs the National Insurance Co. Ltd. — Motor Accident Claims | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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MONDAY ,THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940

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M.A.C.A.No. 1097 of 2015

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AGAINST THE AWARD IN OPMV 615/2005 of PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 23-12-2009.

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APPELLANT/PETITIONER:

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ABDUL RASHEED, S/O.AHAMMED, AGED 56 YEARS, KAYALOTTU HOUSE, P.O.MEPPAYUR, KOZHIKODE DISTRICT.

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BY ADV. SMT.K.V.RASHMI

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RESPONDENT/2ND RESPONDENT:

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THE NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE - 673001, REPRESENTED BY ITS MANAGER.

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BY ADV. SMT.DEEPA GEORGE ADV. SRI. M.A.GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No. 1097 of 2015

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JUDGMENT

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This appeal is preferred against the award in OP(MV)No.615/2005 of the Motor Accidents Claims Tribunal, Kozhikode by the injured. Appellant sustained injuries in a motor accident, while he was travelling as a pillion rider and the learned Tribunal awarded compensation of Rs.1,07,667/(One Lakh Seven Thousand Six Hundred and Sixty Seven) with 7% interest and cost. Being aggrieved by that, the claimant preferred this appeal.

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It would be relevant and useful to mention the facts leading to this accident. The accident was not disputed by the respondents in the lower court. On 07-11-2004 at 9pm the claimant was travelling as a pillion rider in KL-18 A-5489 from Kozhikode to Meppayoor, when he reached at Pavangad, another vehicle KL-18 A-8179 driven in a rash and negligent manner hit against the scooter. As a result, the appellant sustained serious injuries. The owner cum driver filed written statement. The insurer admitted the insurance of the vehicle. Claimant did not adduce any oral evidence, but his documents were marked as Exts. A1 to A6. The disability certificate was

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M.A.C.A.No. 1097 of 2015

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marked as Ext.C1, and the copy of the policy was marked as Ext. B1.

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Apex Court in Yadava Kumar v. D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567) reiterated the

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principle in relation to the assessment of damages for personal injuries cases as follows:

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“ 17. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW1 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome.

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18. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a 'just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of 'just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field.

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Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (See Mrs. Helen C. Rebello and Ors. v. Maharashtra State Road Transport Corpn. and Anr. MANU/SC/0621/1998: AIR 1998 SC 3191).

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M.A.C.A.No. 1097 of 2015

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19. This Court also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (See Hardeo Kaur and Ors. v. Rajasthan State Transport Corporation and Anr. MANU/SC/0235/1992: (1992) 2 SCC 567).

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20. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation”.

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In injury cases 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 consideration. Amount of compensation for non-pecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration.

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M.A.C.A.No. 1097 of 2015

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The calculation of compensation in permanent disability case 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.

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Appellant is a teacher by profession at North MLP School Meppayyoor. But no evidence has been adduced in the lower court to prove his occupation and income. In the absence of any evidence, no amount was awarded. Having regard to the facts and circumstances of the case following

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M.A.C.A.No. 1097 of 2015

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amount is awarded as enhanced compensation for Pain and suffering additional Rs.10,000/- and for permanent disability another Rs.25,000/-. No further amount awarded towards other heads. The total enhanced compensation is Rs.35,000/with 9% interest and proportionate cost. The insurer is directed to satisfy the award amount within 30 days from the copy of receipt of this judgment, failing which it will carry 12% interest from the date of default. The appellant is not entitled to get interest for the delay period of 1786 days

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This appeal is disposed of, as above.

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P.D.RAJAN, JUDGE

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nak

Abdul Rasheed v. the National Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Abdul Rasheed v. the National Insurance Co. Ltd.

Case brief

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What did the court decide?

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