Allowed

Jivin v. the Oriental Insurance Co.Ltd.

Kerala HC11 Jun 2018MACA/2094/2017

Case brief

AI extract

What is this about?

High Court allowed an appeal against a Motor Accidents Claims Tribunal award of Rs.7,25,545. The Court enhanced monthly income to Rs.6,000, applied a multiplier for 40% disability, and awarded additional Rs.3,37,440 plus interest.

What did the court decide?

Award enhanced compensation of Rs.3,37,440 plus interest; total award is Rs.3,30,000 above original figure and order overruled the Tribunal's calculation methods.

Jivin Vs the Oriental Insurance Co.Ltd. — Motor Accident Claims | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶4

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

¶5

MACA.No. 2094 of 2017

¶6

AGAINST THE AWARD IN OPMV 316/2012 of M.A.C.T.,PERUMBAVOOR DATED 29-03-2016

¶7

APPELLANT/PETITIONER IN O.P.(MV) 316/2012

¶8

JIVIN AGED 32 YEARS, JANARDHANAN, AMABATTU HOUSE, KIDANGOOR KARA, THURAVOOR VILLAGE, PIN-693591.

¶9

BY ADVS.SRI.REJI GEORGE SMT.ANUPAMA JOHNY

¶10

RESPONDENT/RESPONDENT NO.3 IN OP(MV) 316/2012:

¶11

THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE, 1ST FLOOR, C.V.M.COMPLEX, YMCA ROAD, ALLEPPEY, PIN-688001.

¶12

R1 BY ADV. SRI.S.K.AJAY KUMAR R BY SMT.K.S.SANTHI

¶13

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

bng

¶15

P.D.RAJAN, J

¶16

- - - - - - - - - - - - - - - - - - -

¶17

M.A.C.A No.2094 of 2017

¶18

- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11^th day of June, 2018

¶19

JUDGMENT

¶20

This appeal is preferred against the award in O.P(MV) No.316/2012 of the Motor Accidents Claims Tribunal, Perumbavoor by the injured. The appellant sustained serious injuries in a motor accident and the learned Tribunal awarded Rs.7,25,545/- as compensation. Being dissatisfied by that amount, the injured preferred this appeal.

¶21

In the lower court, there was no dispute with regard to the accident. The driver and owner of the offending vehicle were set ex-parte. The insurer admitted the insurance of the vehicle. The claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A14. Respondent's document was marked as Ext.B1. The disability certificate was marked as Ext.C1.

¶22

In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to compensate injury so far as money can

¶23

M.A.C.A No.2094 of 2017

¶24

-2-

¶25

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:

¶26

“ 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.

¶27

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

¶28

M.A.C.A No.2094 of 2017

¶29

-3-

¶30

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.”

¶31

The assessment of compensation in

¶32

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 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

¶33

M.A.C.A No.2094 of 2017

¶34

-4-

¶35

assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case.

¶36

The learned counsel appearing for the appellant contended that the appellant is a driver by profession and was getting Rs.6,000/- per month. The learned Tribunal took Rs.5,000/- as his monthly income without any reason. Apex court in Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057) held that, in the absence of any contra evidence, the income reduced by the Tribunal is unsustainable. Therefore, in the light of the submission made by the counsel, Rs.6,000/- can be taken as his monthly income. The learned Tribunal awarded the following amount as compensation.

¶37

1.	Loss of study	Nil
2.	Loss of earnings	Rs.40,000/-
3.	Transport to Hospital	Rs.4,000/-
4.	Extra nourishment	Rs.2,000/-
5.	Payment to bystander	Rs.7,500/-
6.	Damage to clothes	Rs.1,000/-
7.	Medical expense	Rs.1,83,045/-
8.	Disfiguration	Nil
9.	Pain and Suffering	Rs.50,000/-
10.	Loss of amenities etc	Rs.30,000/-
11.	Loss of earning power	Nil

¶38

M.A.C.A No.2094 of 2017

¶39

-5-

¶40

Permanent disability Rs.4,08,000/- Total Rs.7,25,545/-

¶41

In the circumstance, the appellant is entitled to get just

¶42

amount as compensation in view of Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)].

¶43

Apex court in National Insurance

¶44

Company V. Pranay Sethi [2017 (4) KLT 662 (SC)],

¶45

held that considering the future prospects 40% has to be added along with the income. Therefore, the total income will be Rs.8,400/-. Ext.C1, the disability certificate shows 40% disability. Therefore, the total disability compensation is Rs.8,400x12x17x40/100=Rs.6,85,440/-. The Tribunal awarded Rs.4,08,000/-. The balance is Rs.2,77,440/-. Along with that, additional Rs.25,000/towards pain and suffering, Rs.20,000/- towards loss of amenities and Rs.15,000/- towards future medical treatment. The total amount is Rs.3,37,440/(Rs.2,77,440+25,000+20,000+ 15,000) as enhanced compensation. Hence, Rs.3,37,440/- is awarded as enhanced compensation in addition to the award amount.

¶46

M.A.C.A No.2094 of 2017

¶47

-6-

¶48

The appellant is entitled to get enhanced compensation of Rs.3,37,440/- (Rupees Three Lakh Thirty Seven Thousand Four Hundred and Forty only) with 9% interest from the date of petition till realisation with proportionate cost. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. The appellant is not entitled to get any interest for the delay period of 257 days.

¶49

This appeal is disposed of, accordingly.

¶50

Sd/- P.D.RAJAN JUDGE

¶51

bng

Jivin v. the Oriental Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

Jivin v. the Oriental Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

National Insiurance Company Vs Srinavasan

Griju Joseph Vs Benson Joseph and Others

Appu Nair Vs T.S.Rajesh Kumar

The Oriental Insurance Co.Ltd. Vs Nanu Achry

Sadanandan.P.a. Vs Geetha Devi.I.P.

Raji.S Vs Reji George