Dismissed

National Insurance Company Limited v. Sudhakaran K.K.

Kerala HC29 Nov 2018MACA/1560/2015

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed appeals preferring by the injured victim and the insurer against the MAC Tribunal award of Rs. 21,85,600. The Court held the award was just and reasonable, noting the distinction between permanent disability percentage and loss of earning capacity, and found no need to increase compensation for future artificial limb replacement.

What did the court decide?

The Motor Accident Claims Appeals Nos. 2637 of 2014 and 1560 of 2015 were dismissed; the Tribunal's award stands unaltered.

National Insurance Company Limited Vs Sudhakaran K.K. — 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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THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940

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MACA.NO. 2637 OF 2014

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AGAINST THE AWARD IN O.P.(M.V.) NO.162/2013 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 27-06-2014

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APPELLANT/PETITIONER :

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SUDHAKARAN K.K., AGED 37 YEARS, S/O.KARUNAKARAN, RESIDING AT KUZHIKUTHIYANIYIL HOUSE, MOONILAVU VILLAGE, MOONILAVU P.O., KOTTAYAM DISTRICT.

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BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD

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RESPONDENTS/RESPONDENTS :

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1 P. UNNIKRISHNAN NAIR, PROPRIETOR, SPEED AND SAFE COURIER SERVICE, RAMA PAL BUILDINGS, T.D.ROAD, KOCHI, ERNAKULAM-682 016.

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2 VISHNU VIJAYAN, S/O.VIJAYAN, RESIDING AT THEKKEKKUTTU HOUSE, CHOVOOR P.O., KOTTAYAM-686 586.

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3 NATIONAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS MANAGER, DIVISIONAL OFFICE, CSI BUILDINGS, BAKER JUNCTION, KOTTAYAM-1.

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BY ADVS. SRI.M.PREMCHAND SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) SRI.T.C..SURESH MENON CAVEATOR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2018, ALONG WITH MACA NO.1560/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.NO. 1560 OF 2015

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MACA.NO. 2637 OF 2014 &

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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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THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940

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MACA.NO. 1560 OF 2015

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AGAINST THE AWARD IN O.P.(M.V.) NO.162/2013 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 27-06-2014

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APPELLANT/3RD RESPONDENT :

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NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI - 35.

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BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

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RESPONDENT/PETITIONER :

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SUDHAKARAN K.K., S/O.KARUNAKARAN, KUSHIKUTHIYANIYIL HOUSE, MOONILAVU P.O., KOTTAYAM DISTRICT, PIN - 685 320.

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BY ADV. SRI. T.C.SURESH MENON (BY ORDER)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2018, ALONG WITH MACA. NO.2637/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.NO. 2637 OF 2014 & MACA.NO. 1560 OF 2015

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JUDGMENT

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These appeals are preferred against the award in O.P. (M.V.) No.162 of 2013 of the Motor Accidents Claims Tribunal, Pala (for short, Tribunal). Appellant in M.A.C.A No.2637 of 2014 sustained injuries in a motor accident on 28.02.2013 at 6.00 a.m., at Madakkathanam on the ThodupuzhaMuvattupuzha public road. The Motor Accidents Claims Tribunal awarded compensation of Rs.21,85,600/- (Rupees Twenty One Lakh Eighty Five Thousand Six Hundred only). Being aggrieved by that, the injured preferred M.A.C.A No.2637 of 2014 and the insurer preferred M.A.C.A No.1560 of 2015.

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Petitioner's case in the lower court was that on the date of accident he was driving KL-35/B-6721 along Thodupuzha-Muvattupuzha public road and when he reached at Madakkathanam, another vehicle KL-07/AF-1856 driven in a

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MACA.NO. 2637 OF 2014 & MACA.NO. 1560 OF 2015 4

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rash and negligent manner hit against his vehicle, as a result he sustained serious injuries. Immediately he was removed to Medical Trust Hospital, Ernakulam, where his leg was amputated below knee. Hence he filed the claim petition.

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In the lower Court, the owner of the vehicle was ex parte. The driver/2^nd respondent contended that the accident was due to the negligence of the injured. The insurer admitted the insurance of the vehicle. The petitioner was examined as PW1 and his documents were marked as Exts.A1 to A24. The disability certificate was marked as Ext.X1.

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Learned counsel appearing for the appellant in M.A.C.A No.2637 of 2014 contended that the appellant sustained 45% disability. It is submitted that, in view of the decision of the Apex Court in Rajkumar v. Ajay Kumar and Anr. [2011 ACJ 1], the disability may be fixed at 100% and he seeks to award enhanced compensation to the victim. He was working as a Head Load Worker with specific ID Card issued from Head Load Worker Welfare Fund Board. Now he is fully

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MACA.NO. 2637 OF 2014 & MACA.NO. 1560 OF 2015 5

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disabled and unable to do head load work. He wants to repair his artificial limb therefore, enhanced amount may be given for his future replacement of artificial limb.

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Learned Counsel for the appellant in M.A.C.A No.1560 of 2015 contended that huge amount was awarded towards loss of amenities and future treatment. Half of the disability amount was awarded towards loss of amenities. The amount awarded towards purchase of artificial limb is also very high. No change of circumstance was noticed by the court below to increase the disability from 45% to 100% and he prays to reduce the compensation.

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

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MACA.NO. 2637 OF 2014 & MACA.NO. 1560 OF 2015

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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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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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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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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

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MACA.NO. 2637 OF 2014 & MACA.NO. 1560 OF 2015 7

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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 personal injury cases the compensation has to be assessed separately as pecuniary and special damages. The object behind this is to compensate the injured 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 assessment 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

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MACA.NO. 1560 OF 2015 8

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MACA.NO. 2637 OF 2014 &

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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 in M.A.C.A. No.2637 of 2014 sustained serious injuries in the accident which was not disputed by the insurer in this case. Ext.X1 disability certificate issued from Medical College Hospital, Kottayam shows that he has a permanent disability of 45%. The Superintendent, Medical College Hospital, Kottayam constituted a Medical Board and

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MACA.NO. 2637 OF 2014 & MACA.NO. 1560 OF 2015 9

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issued the Medical Certificate on 28.05.2014. Ext.X1 shows that he had undergone below knee amputation left lower limb. Exts.A16, A17, A18, A19 and A20 series medical bills show that he spent Rs.6,87,733/- (Rupees Six Lakh Eighty Seven Thousand Seven Hundred and Thirty Three only) towards medical expenses. The insurer have no dispute with regard to the above injury and treatment. He was a Head Load Worker. Now he is disabled and unable to do any work. The learned Tribunal took Rs.9,000/- as his monthly income which is just and reasonable. Both parties did not dispute the income taken by the Tribunal.

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Apex Court in Rajkumar v. Ajay Kumar and Anr.

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[2011 ACJ 1] held that the injured is entitled to get just amount of compensation which reads as follows:

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(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(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

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MACA.NO. 2637 OF 2014 & MACA.NO. 1560 OF 2015 10

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the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

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(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.

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(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.

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On a perusal of the injuries and the amount awarded by the Tribunal, it is true that just and reasonable amount was awarded by the Tribunal. Even though the insurer who is the appellant in M.A.C.A. No.1560 of 2015 contended that huge amount was awarded towards loss of amenities, I am of the view that the above amount is just and reasonable. The injured lost his left leg in the accident which has brought several losses and inconvenience for his future life, which cannot be fully compensated with money comparing with the loss of amenities of his life. Hence, I am of the view that just

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MACA.NO. 2637 OF 2014 &

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MACA.NO. 1560 OF 2015

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amount was awarded by the Tribunal and no interference is necessary. Hence, M.A.C.A. Nos.2637 of 2014 and 1560 of

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2015 are dismissed accordingly.

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Sd/- P.D. RAJAN, JUDGE

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