Allowed

Fahad M.A v. Shan A.S

Kerala HC3 Oct 2018MACA/3879/2017

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an Motor Accidents Claims Tribunal award, enhancing compensation from Rs.85,500 to Rs.1,98,000 plus interest. Relying on Supreme Court principles regarding just compensation and loss of earning capacity for a painter/worker, the Court awarded enhanced amounts for loss of income, pain and suffering, and disability.

What did the court decide?

Additional compensation of Rs.1,98,000 and 9% interest granted; insurer directed to pay within 30 days with 12% interest on default.

Fahad M.A Vs Shan A.S — 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 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940

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MACA.No. 3879 of 2017

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AGAINST THE AWARD IN OPMV 13/2010 of M.A.C.T. TIRUR

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APPELLANT/PETITIOINER:

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FAHAD M.A S/O. ABDUL RAHMAN, AGED 33 YEARS, RESIDING AT MALIYEKKAL HOUSE, CHIRAMANANGAD, THRISSUR DISTRICT, NOW RESIDING AT P.O. CHANGARAMKULAM, MALAPPURAM DISTRICT.

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BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD SRI.P.S.APPU

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RESPONDENTS/RESPONDENTS:

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1 SHAN A.S S/O. SALIM, RESIDING AT VADAKKEVEETTIL HOUSE, ARAKKINAR P.O., BEYPURE, CALICUT-673928.

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2 NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, PARCO TOWERS, P. B. NO.207, CALICUT-673001.

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BY ADV. SRI.PMM.NAJEEB KHAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is preferred against the award in O.P. (MV)No.13/2010 of the Motor Accidents Claims Tribunal, Tirur by the injured. On 21.09.2009, the appellant sustained injuries in a motor accident and the learned Tribunal awarded Rs.85,500/- as compensation. The accident was not disputed by the respondents in the lower court. The rider of the offending vehicle 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 A8. Being aggrieved by that the injured preferred this appeal.

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In Yadava Kumar v. D.M. National

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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

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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 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

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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 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 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 nonpecuniary 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. There can be no uniform standard and yardstick provided for assessing such compensation. 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

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MACA.No. 3879 of 2017

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remaining period of his life.

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Generally in practical terms it is found that

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discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in this case. The learned counsel appearing for the appellant contended that the appellant is a coolie, aged 26 years and was getting Rs.5,000/- per month. He sustained fracture to shaft femur. Ext.A7 wound certificate shows comminuted fracture shaft right femur, X-ray investigation corroborated the fracture femur. He could not produce the disability certificate. Now he produced the disability certificate, which is marked as Ext.X1. The disability certificate shows 14% physical impairment. In view of Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057), the income is fixed as Rs.5,000/-.

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Hence, the following amount is awarded as enhanced compensation. Loss of income for six months is Rs.30,000/-, lower court awarded Rs.12,000/- and the balance amount is Rs.18,000/-. Additional Rs.80,000/- for pain and suffering and for disability another Rs.1,00,000/- is awarded. The appellant is entitled to get additional compensation of

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Rs.1,98,000/- (Rupees One Lakh Ninety Eight Thousand only) with 9% interest from the date of petition till realisation 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 copy of this judgment, failing which it will carry 12% interest from the date of default.

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This appeal is disposed, as above.

Sd/-

P.D.RAJAN JUDGE

bng/09.10.18

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