Remanded

Sharone @ Alwin Shaji, v. K.Sujatha

Kerala HC12 Dec 2018MACA/1583/2009

Case brief

AI extract

What is this about?

Reversing an award of Rs. 3,09,565 for a minor injured in a bus accident who lost a leg, the Court remitted the matter to the Tribunal for fresh consideration. Citing Ram Kumar, the Court emphasized that compensation for disability in minors is difficult to assess immediately and requires waiting until majority to evaluate earning capacity.

What did the court decide?

The award of the Additional Motor Accidents Claims Tribunal set aside and matter remitted for fresh consideration within three months.

Sharone @ Alwin Shaji, Vs K.Sujatha — 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 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940

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MACA.NO. 1583 OF 2009

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AGAINST THE AWARD IN O.P.(M.V.) NO.953/2003 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, KOZHIKODE DATED 30-01-2009

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APPELLANT/PETITIONER :

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SHARONE @ ALWIN, S/O SHAJI, AGED 18 YEARS, PARAKKATTU HOUSE, P.O. MUNDAKKAYAM, KOTTAYAM-13, KOTTAYAM DISTRICT.

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BY ADV. SMT.K.V.RASHMI

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RESPONDENTS/RESPONDENTS :

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1 K.SUJATHA, D/O KANNAN, VEENA NIVAS, YOGASALA ROAD, TALAP, KANNUR.

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2 NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, P.B.NO.40, BANK ROAD, KANNUR.

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BY ADV. SRI.ABHIJETT LESSLI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.NO. 1583 OF 2009

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JUDGMENT

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This appeal is preferred against the award in O.P.(M.V.) No.953 of 2003 of the Additional Motor Accidents Claims Tribunal-II, Kozhikode by the injured. Appellant sustained injuries in a motor accident and the Motor Accidents Claims Tribunal awarded compensation of Rs.3,09,565/- (Rupees Three Lakh Nine Thousand Five Hundred and Sixty Five only) with 7% interest and cost. Being aggrieved by that, the injured preferred this appeal.

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It is relevant to refer the facts given rise to the case. The accident was not disputed by the respondent in the lower court. On 03.01.2003 at 2.15 a.m., the claimant was travelling in a bus KL-13/E-3679 from Kozhikode to Mundakkayam when they reached at the place of occurrence, the vehicle capsized, as a result the petitioner and other passengers sustained serious injuries. The accident was due to the rash and negligent driving of the vehicle by its driver. The owner of the bus contended that the driver was not rash

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MACA.NO. 1583 OF 2009

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and negligent. The insurer admitted the insurance of the vehicle. The above case was tried along with O.P. (M.V.)Nos.780 of 2003, 797 of 2003, 876 of 2003, 877 of 2003 and 952 of 2003. The claimant did not adduce any oral evidence, but their documents were marked as Exts.A1 to A26.

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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 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

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MACA.NO. 1583 OF 2009

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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 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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MACA.NO. 1583 OF 2009

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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 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

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MACA.NO. 1583 OF 2009

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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 sustained serious injuries and his right leg above knee was amputated. The treatment record

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Ext.A23 issued from Medical College Hospital, Kozhikode corroborate the above averments of the appellant. He was a student aged 11 years at the time of accident. Now he is disabled and unable to do any work. Apex Court in Rajkumar v. Ajay Kumar and Anr. [2011 ACJ 1] held that the disability awarded by the Tribunal has to be accepted. It is difficult to assess the compensation for disability of a minor. How far the disability affected his earning capacity can be calculated only after attaining majority. If that be

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MACA.NO. 1583 OF 2009

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position, in view of Raj Kumar (Supra) the award of the Additional Motor Accidents Claims Tribunal, Kozhikode is set aside and the matter is remitted to the Tribunal for fresh consideration. If any amount is deposited towards compensation can be adjusted towards the final award. Both parties are directed to appear before the Tribunal on 05.02.2019. The Tribunal shall dispose of the matter within a period of three months from the date of appearance of the parties.

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Sd/- P.D. RAJAN JUDGE

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/True Copy/ P.A. To Judge

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Sharone @ Alwin Shaji, v. K.Sujatha

Case brief

What is this about?

What did the court decide?

Sharone @ Alwin Shaji, v. K.Sujatha

Case brief

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