Allowed

Biju v. Aneesh Kumar

Kerala HC20 Dec 2018MACA/2123/2015

Case brief

AI extract

What is this about?

The Kerala High Court disposed of an appeal by the injured party against the Motor Accidents Claims Tribunal award of Rs. 1.20 lakhs. The Court applied the National Insurance Company v. Pranay Sethi principle to enhance compensation for a 20% permanent disability, directing the insurer to pay Rs. 4.16 lakhs in addition to the awarded amount.

What did the court decide?

Enhanced compensation of Rs. 4,16,320/- awarded with 9% interest, to be paid by the insurer within 30 days with 12% further interest on default.

Biju Vs Aneesh Kumar — 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 20TH DAY OF DECEMBER 2018 / 29TH AGRAHAYANA, 1940

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MACA.No. 2123 of 2015

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AGAINST THE AWARD IN OPMV 23/2014 of MACT PALA DATED 06-03-2015

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APPELLANT/PETITIONER:

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BIJU

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S/O.VELAYUDHAN NAIR, KALAYATHOLIL (H), MEVADA P.O., MEVADA KARA, MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM DIST.

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REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BABURAJAN NAIR, S/O.SREEDHARAN NAIR, AGED 49 YEARS, CHERUSALA HOUSE, BHARANANGANAM P.O., AND KARA AND DO VILLAGE, MEENACHIL TALUK, KOTTAYAM DIST.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENTS/RESPONDENTS:

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1 ANEESH KUMAR

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S/O.MADHUSOODANAN NAIR, KUZHIKKATTU HOUSE, MEVADA P.O., MEVADA KARA, MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM DIST, PIN:686 620.

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2 NATIONAL INSURANCE CO. LTD. PALA,REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, PALA, PIN: 686 575.

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BY ADV. SMT.RAJI T.BHASKAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 2123 of 2015

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JUDGMENT

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This appeal is preferred against the award in O.P. (MV)No. 23/2014 of the Motor Accidents Claims Tribunal, Pala by the injured. The appellant sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.1,20,250/- with 9% interest and proportionate cost. Being aggrieved by that, he preferred this appeal.

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It would be relevant and useful to mention the facts leading to the accident. The appellant's case in the lower court was that on 23.05.2013 at 3.20 pm, he was walking through the side of Pala - Ponkunnam road, when he reached at the place of occurrence, the vehicle KL35/C-3950 driven in a rash and negligent manner knocked down the appellant. As a result, he sustained serious injuries. The owner cum driver was 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 A13. A copy of driving licence is marked as Ext.B1.

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In Yadava Kumar v. D.M. National

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MACA.No. 2123 of 2015

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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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“ 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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18. 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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19. 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

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MACA.No. 2123 of 2015

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SCC 567).

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20. 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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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 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

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MACA.No. 2123 of 2015

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reason is that the injured has to suffer disability for the remaining period of his life. In short the 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 learned counsel appearing for the appellant contended that appellant sustained permanent disability of 20% and he is a driver by profession and was getting Rs.8,000/- per month. The learned Tribunal took Rs.7,000/- as his monthly income for calculating compensation and just amount was not awarded by the Tribunal. Apex court in National Insurance Company v. Pranay Sethi [2017 (4) KLT 662 (SC)] held that 40% is to be added towards future prospects. In the absence of any documentary evidence regarding income, the income taken by the Tribunal is confirmed and Rs.2,800/- is added towards future prospects. The total income for calculating disability compensation is Rs.9,800/-. The disability compensation is

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Rs.9,800x12x16x20/100= Rs.3,76,320/-. No amount was awarded by the Tribunal towards permanent disability. Hence,

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he is entitled to get Rs.3,76,320/- towards permanent disability. In addition to that, Rs.20,000/- towards pain and

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MACA.No. 2123 of 2015

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suffering and Rs.20,000/- towards loss of amenities. Therefore, the appellant is entitled to get enhanced compensation of Rs.4,16,320/- (Rupees Four Lakhs Sixteen Thousand Three Hundred and Twenty only) with 9% interest and proportionate cost in addition to the award amount. 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.

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This appeal is disposed of, as above.

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Sd/- P.D.RAJAN JUDGE

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bng/21.12.18

Biju v. Aneesh Kumar

Case brief

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What did the court decide?

Biju v. Aneesh Kumar

Case brief

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What did the court decide?

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