Allowed

Susanna Joseph v. the Branch Manager, the New India Assurance Company Ltd.

Kerala HC6 Jun 2018MACA/1145/2012

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an MACT award. It enhanced compensation from Rs. 22,600 to Rs. 43,000 for the appellant, a housewife with 1% disability, citing general and special damages including loss of income, pain, suffering, and loss of amenities.

What did the court decide?

Compensation enhanced to Rs. 43,000 with interest at 7.5% per annum from date of petition and 12% from date of default.

Susanna Joseph Vs the Branch Manager, the New India… — 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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WEDNESDAY, THE 6TH DAY OF JUNE 2018 / 16TH JYAISHTA, 1940

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MACA.NO. 1145 OF 2012

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AGAINST THE AWARD IN O.P.(M.V.) NO.353/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA DATED 31-10-2011

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APPELLANT(S)/PETITIONER :

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SUSANNA JOSEPH,AGED 69 YEARS, W/O.JOSEPH, PALIYATH HOUSE, KAKKAMCHERI, ELLUMANNAM POST, MANANTHAVADY, WAYANAD DISTRICT.

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BY ADV.SMT.CELINE JOSEPH

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RESPONDENT(S)/RESPONDENT NO.3 :

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THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., 2ND FLOOR, RAKA PLAZA, S.S.COIL ROAD, THAMPANOOR, THIRUVANANTHAPURAM-695001.

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BY ADV. SMT.RAJI T.BHASKAR BY ADV.SRI.A.A.ZIYAD RAHMAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J.

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M.A.C.A. No.1145 of 2012

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Dated this the 6^th day of June, 2018

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J U D G M E N T

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This appeal is preferred against the award in O.P.(M.V.) No.353 of 2009 of the Motor Accidents Claims Tribunal, Kalpetta by the injured. Appellant sustained injuries in a motor accident on 14.05.2009 and the learned Tribunal awarded compensation of Rs.22,600/(Rupees Twenty Two Thousand Six Hundred only) with 7.5% interest and cost as compensation. Being aggrieved by that, the injured preferred this appeal.

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There is no dispute with regard to the accident. Insurer admitted the insurance of the vehicle. The driver and owner of the vehicle were ex parte. Claimant did not adduce any oral evidence, but her documents were marked as Exts. A1 to A8(s). The Disability Certificate was marked as Ext.C1. The learned Tribunal awarded the following amounts as compensation.

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M.A.C.A. No.1145 of 2012 2

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Income/Notional Income Rs.2,500/-, Loss of earning (Total) Rs.5,000/-, Medical and miscellaneous expenses Rs.2,300/-, Bystander expenses Rs.1,900/-, Transportation expenses Rs.500/-, Extra nourishment Rs.1,900/-, Damage to clothing etc. Rs.500/-, Pain and suffering Rs.6,000/-, Compensation for permanent disability Rs.1,500/- and Loss of amenities and conveniences etc. Rs.3,000/-. The total compensation awarded by the Tribunal was Rs.22,600/- (Rupees Twenty Two Thousand Six Hundred only).

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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

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M.A.C.A. No.1145 of 2012 3

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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:

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“ 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.

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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.”

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The assessment of compensation in

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permanent disability cases would differ from person to

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M.A.C.A. No.1145 of 2012 4

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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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Learned counsel appearing for the appellant contended that the appellant is a house wife and was getting income of Rs.4,000/- per month. She is rendering service to her family and due to the above injury she

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M.A.C.A. No.1145 of 2012 5

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sustained substantial loss. Ext.C1 shows 1% disability. Her right little finger was amputated. If that be the position, she is entitled to get just amount as compensation. Hence, I fix her monthly income as Rs.4,000/- and award the following additional amounts as compensation to the victim.

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Loss of income for three months Rs.12,000/-. The learned Tribunal awarded Rs.5,000/- on that head, the balance is Rs.7,000/-. Medical expenses Rs.2,000/-, Bystander expenses Rs.2,000/-, Extra nourishment Rs.2,000/-, Pain and suffering Rs.10,000/-, for Permanent Disability Rs.10,000/- and Loss of Amenities Rs.10,000/- . The total enhanced compensation comes to Rs.43,000/(Rupees Forty Three Thousand only).

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Accordingly, the appellant is entitled to get an enhanced compensation of Rs.43,000/- (Rupees Forty Three Thousand only) with 7.5% interest per annum from the date of petition till realisation with proportionate cost in addition to Rs.22,600/- (Rupees Twenty Two Thousand Six Hundred only) awarded by the learned Tribunal. The

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M.A.C.A. No.1145 of 2012 6

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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.

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This M.A.C.A is disposed of as above.

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Sd/- P.D. RAJAN, JUDGE

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/True Copy/ P.A. To Judge

Susanna Joseph v. the Branch Manager, the New India Assurance Company Ltd.

Case brief

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Susanna Joseph v. the Branch Manager, the New India Assurance Company Ltd.

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