Remanded

Sadanandan.P.a. v. Geetha Devi.I.P.

Kerala HC11 Jun 2018MACA/149/2010

Case brief

AI extract

What is this about?

The Kerala High Court allowed an appeal against a Motor Accident Claims Tribunal award. The Court observed that the Tribunal erred in reducing the claimant's income from his stated figure and failed to appreciate the 50% disability assessed by the doctor without reasons.

What did the court decide?

The award of the Principal Motor Accidents Claims Tribunal is set aside. The matter is remitted to the Tribunal to consider the amendment application and determine just compensation.

Sadanandan.P.a. Vs Geetha Devi.I.P. — Medical Negligence | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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MONDAY, THE 11TH DAY OF JUNE 2018 / 21ST JYAISHTA, 1940

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MACA.NO. 149 OF 2010

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AGAINST THE AWARD IN O.P.(M.V.) NO.2307/2003 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 29.04.2009

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APPELLANT(S)/CLAIMANT :

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SADANANDAN P.A., S/O APPUTTY, POYILIL HOUSE, AGED 52, KALLURUTTY P.O., THIRUVAMBADY(VIA),KOZHIKODE.

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BY ADV.SMT.K.V.RASHMI

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RESPONDENT(S)/RESPONDENTS:

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1. GEETHA DEVI.I.P. CHERETTUKUZHI HOUSE, P.O. MANASSERY, MUKKAM, KOZHIKODE DISTRICT.

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2. AHAMMEDKUTTY, S/O.AITHU, AGED 33, PARAKAMANNA HOUSE, P.O. PANNIPPARA, KOZHIKODE DISTRICT.

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3. THE UNITED INDIA INSURANCE CO.LTD, DIVISIONAL OFFICE 2, SEEMA TOWERS, MAVOOR ROAD, KOZHIKODE.

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R1 BY ADV. SRI.P.V.JAYACHANDRAN R3 BY ADV. SRI.P.SANKARANKUTTY NAIR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-06-2018, 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.149 of 2010

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Dated this the 11^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.2307 of 2003 of the Principal Motor Accidents Claims Tribunal, Kozhikode by the injured. Appellant sustained injuries in a motor accident on 29.06.2003 at 11.45 a.m., while he was travelling in a bus KL-11/M-8456 and the learned Tribunal awarded compensation of Rs.54,900/- (Rupees Fifty Four Thousand Nine Hundred only) with interest and cost. Being aggrieved by that, the injured preferred this appeal.

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In the lower court, claimant's case is that, on 29.06.2003 at 11.45 a.m., while he was travelling in a bus KL-11/M-8456 and when he reached at the place of occurrence, it collided with another bus KL-11/J-3663 thereby he sustained serious injuries. Immediately he was removed to Medical College Hospital, Kozhikode. He is a Rubber Tapper by profession and was getting Rs.6,000/per month. The driver and owner of the vehicle were ex

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M.A.C.A. No.149 of 2010 2

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parte and the insurer admitted the insurance of the vehicle KL-11/J-3663. Claimant was examined as PW1 and

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his documents were marked as Exts.A1 to A7. The disability certificate was marked as Ext.C1 which shows 50% disability to the appellant.

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In Yadava Kumar v. D.M. National Insurance Co. Ltd. [2010 (8) SCALE 567] Apex Court reiterated

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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

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compensation-is taking an appropriate multiplier of an appropriate multiplicand.”

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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.

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It was contended by the appellant that he was

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M.A.C.A. No.149 of 2010 4

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getting Rs.6,000/- per month, but the learned Tribunal took only Rs.1,500/- per month. Apex Court in Syed Sadiq and Others V. Divisional Manager, United India Insurance Company Limited [(2014) 2 Supreme Court Cases 735] held as follows:

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The appellant claimant in his appeal further claimed that he had been earning Rs.10,000/- p.m. By doing vegetable vending work. The High Court however, considered the loss of income at Rs.3,500/- p.m. Considering that the claimant did not produce any document to establish his loss of income. It is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is expected to produce documents to prove his monthly income. In this regard, this Court, in Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd, has held as under: (SCC pp.242-43, paras 13-15)

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In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs.4500/- per month at the time of accident. This claim is reduced by the tribunal to a sum of Rs.3,000/- only on the assumption that the wages of a labourer during the relevant period viz. Int he year 2004, was Rs.100 per day. This assumption in out view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have

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reduced the claim of the claimant and determined the monthly earning to be a sum of Rs.3000 per month. Secondly, the appellant was working as a coolie and therefore, we cannot except him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.

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We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time.

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In the present case, appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs.100 to Rs.150 per day or Rs.4500 per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs.4500/- to Rs.3000/- per month. We, therefore, accept his statement that his monthly earning was Rs.4500/-.”

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There is no reason in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant claimant. On the other hand, going by

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the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs.6500/- per month.

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In another decision, Dixit Kumar and Ors. Vs.

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Om Prskash Goel [2017 ACJ 2057] it was held that, in the absence of any contra evidence, the income stated by the claimant has to be considered. The learned Tribunal took a meagre amount in this case as the monthly income. Claimant is a Rubber Tapper by profession and he is entitled to get just amount as compensation in view of Rajkumar v. Ajay Kumar and Anr. [2011 ACJ 1] . No reasons are stated by the Tribunal for reducing the disability from 50% to 10%. There was no proper application of mind and awarded the following amounts as compensation:

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Medical bills Rs.15,000/-, Incidental charges Rs.2,000/-, Pain and suffering Rs.10,000/-, Disability Rs.23,400/-, Loss of notional income (in 2003) Rs.4,000/and Transportation Rs.500/-. The total is Rs.54,900/(Rupees Fifty Four Thousand Nine Hundred only).

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M.A.C.A. No.149 of 2010 7

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In permanent injury case, the injured is entitled to get higher amount as compensation 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.

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The claimant filed I.A. No.1874 of 2018 and contended that the compensation awarded by the Tribunal is a meagre one, hence the amendment of the petition is necessary. Rule 395 of the Kerala Motor Vehicles Rules, 1989 reads as follows:

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Code of Civil Procedure to apply in certain cases.- The provisions of Rules 9 to 13 and 15 to 30 of Order V, Rules 16 to 18 of Order VI, Order IX, Rules 3 to

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M.A.C.A. No.149 of 2010 8

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10 of Order XIII, Rules 1 to 21 of Order XVI, Rules 1 to 3 of Order XXIII and Order XXVI of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to the proceedings before the Claims Tribunal.

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The power to grant amendment of the pleadings must be regarded as inherent in all Motor Accident Tribunals for enquiring into rights and liabilities of parties for adjudicating their claims or disputes. Where pleadings play an important part in legal proceedings before Tribunals, they afford the basis for evidence during the enquiry and the power to amend must be necessarily an indispensable factor to their jurisdiction. Error cannot be completely avoided from any human conduct especially in matters of writing or drafting. An amendment application can be allowed at any stage which do not cause injustice to the other side and which are necessary for the purpose of determining the real question in controversy between the parties. This Court in Annamma Philip v. Accidents Claims Tribunal [AIR 1980 Ker. 196] held that in view of the scheme of the Act and the Kerala Motor Accidents Claims Tribunal Rules, 1977, the

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Tribunal has jurisdiction to allow the claimants to implead parties and to amend the petition accordingly. Another decision in Raj Kumar Guruwara V. S.K. Sarwagi & Co, (P) Ltd. [(2008) 14 SCC 364] it was held that “just and proper amendment to pleadings can be introduced at any stage as may be necessary for the purpose of determining the real question in controversy”.

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In view of the scheme of the Motor Vehicles Act, 1988 and the Kerala Motor Accident Rule, 1989, the tribunal has jurisdiction to amend the petition. In Nanduri Yogananda Lakshminarasimhachari and Ors. v. Sri. Agastheswaraswamivaru [AIR 1960 Supreme Court 622] the apex court held that;

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“The High Court was right in allowing at the appellate stage the amendment by the addition of a new prayer in the prayer clause of the plaint, when all the allegations had been made in the plaint, requisite plea had been raised by the appellant, an issue was framed on the question, the parties were fully cognizant of the points in controversy and they had led the necessary evidence. ”

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In this case, the Doctor certified 50% disability to the

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appellant. For awarding just amount as compensation, amendment of the application is necessary. In the circumstances, the award of the Principal Motor Accidents Claims Tribunal, Kozhikode is set aside and the matter is remitted to the Tribunal for fresh consideration. Tribunal is directed to re-number the amendment application and the insurer is at liberty to file objection if any on such amendment application. The amount if any paid by the insurer shall be adjusted with final award amount. Both parties are directed to appear before the Principal Motor Accidents Claims Tribunal, Kozhikode on 14.08.2018 and on such appearance, the Tribunal shall consider the amendment application and dispose the matter as per law.

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Sd/- P.D. RAJAN, JUDGE

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/True Copy/ P.A. To Judge

Sadanandan.P.a. v. Geetha Devi.I.P.

Case brief

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Sadanandan.P.a. v. Geetha Devi.I.P.

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