Allowed

Aboobacker Paranchery v. the National Insurance Co. Ltd. and Anot

Kerala HC9 Oct 2018MACA/201/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed the appellant's appeal against the Motor Accidents Claims Tribunal award. The Court corrected the multiplier calculation for permanent disability, enhancing compensation from Rs. 3.6 lakhs to Rs. 5.76 lakhs based on a monthly income of Rs. 4,000 instead of implied higher figures, and directed equal 50:50 liability from both insurers with interest.

What did the court decide?

The appeal was allowed, compensation enhanced to Rs. 5,76,000 for permanent disability plus Rs. 1,00,000 for non-pecuniary loss, apportioned equally between insurers with interest.

Aboobacker Paranchery Vs the National Insurance Co… — 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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TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940

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MACA.NO. 201 OF 2009

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AGAINST THE AWARD IN O.P.(M.V.) NO.688/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI DATED 25-07-2008

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APPELLANT/PETITIONER :

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ABOOBACKER PARANCHERY, S/O HYDROSE, MALAYIL HOUSE, VALLUVAMBROM, ERNAD TALUK, MALAPPURAM DISTRICT.

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BY ADVS. SRI.BABU S. NAIR SMT.M.T.SHEEBA

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RESPONDENTS/RESPONDENT NO.3 AND 6 :

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1 THE NATIONAL INSURANCE CO. LTD. KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI P.O., MALAPPURAM DISTRICT.

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2 UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, COURT ROAD, MANJERI.

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(RESPONDENTS 1, 2, 4 AND 5 BEFORE THE TRIBUNAL ARE NOT MADE PARTIES IN THIS APPEAL SINCE NO RELIEFS ARE MADE AGAINST THEM.)

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BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.DEEPA GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.NO. 201 OF 2009

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JUDGMENT

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This appeal has been preferred against the award in O.P. (M.V.) No.688 of 2004 of the Motor Accidents claims Tribunal, Manjeri by the injured. Appellant sustained injuries in a motor accident and the learned Tribunal awarded Rs.4,86,250/(Rupees Four Lakh Eighty Six Thousand Two Hundred and Fifty only) with 7% interest and cost. Being aggrieved by that, the injured preferred this appeal.

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The accident occurred due to the negligence of both vehicles. Claimants case in the lower court was that on 12.02.2004 at 8.10 hours, while he was travelling in KL-8/Y8559 from Thamarasseri to Manjeri and when he reached at Kallayi, another bus KL-11/J-3663 came in a rash and negligent manner and both vehicles collided. Appellant and other passengers sustained serious injuries in the accident. The driver and owner of both vehicles were ex parte. Both insurers admitted the insurance of the vehicles. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A8.

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MACA.NO. 201 OF 2009

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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 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. 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

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MACA.NO. 201 OF 2009

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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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Learned counsel appearing for the appellant contended that the appellant was getting Rs.5,000/- per month from his Coolie work and the learned Tribunal took only Rs.2,500/- for calculating compensation. The wound certificate issued from Moulana Hospital shows amputation 1/3^rd of (R) Humerus. He sustained permanent disability at 80%. The insurers have no dispute with regard to the above disability and he is entitled to get just amount as compensation.

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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,

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MACA.NO. 201 OF 2009

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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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The Tribunal has arrived at the conclusion that the injured was getting Rs.30,000/- per year. Respondents have no dispute with regard to the disability. Hence, in view of Syed Sadiq and Others V. Divisional Manager, United India Insurance Company Limited [(2014) 2 Supreme Court Cases 735] , the income is taken as Rs.4,000/- per month and award Rs.5,76,000/- (4000x12x15x80%) towards Permanent Disability. The learned Tribunal awarded Rs.3,60,000/- on that head and the balance is Rs.2,16,000/-. In addition to that, an amount of Rs.50,000/- is awarded for Pain and Sufferings and

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MACA.NO. 201 OF 2009

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Rs.50,000/- is awarded for Loss of amenities. The total enhanced compensation is Rs.3,16,000/- (Rupees Three Lakh Sixteen Thousand only). The liability is apportioned as 50:50 among the insurers. Both insurers are directed to pay Rs.3,16,000/- (Rupees Three Lakh Sixteen Thousand only) at the ratio of 50:50 with 9% interest and proportionate cost from the date of petition, failing which it will carry 12% interest from the date of default.

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This appeal is disposed of as above.

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Sd/-

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P.D. RAJAN JUDGE

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/True Copy/ P.A. To Judge

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Aboobacker Paranchery v. the National Insurance Co. Ltd. and Anot

Case brief

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Aboobacker Paranchery v. the National Insurance Co. Ltd. and Anot

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