Allowed

Gopi, S/O.Kesavan v. Biju George, S/O. George

Kerala HC5 Jun 2018MACA/447/2013

Case brief

AI extract

What is this about?

This appeal against an award of Rs. 1,47,718/ granted to an injured salesman was allowed with enhanced compensation. The Court, applying multiplier principles, directed the insurer to pay an additional Rs. 1,03,440/- along with interest and costs.

What did the court decide?

Enhanced compensation of Rs. 1,03,440/- with 7.5% interest and proportionate cost awarded to the appellant in addition to the Tribunal's grant.

Gopi, S/O.Kesavan Vs Biju George, S/O. George — Motor Accident Claims | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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TUESDAY, THE 5TH DAY OF JUNE 2018 / 15TH JYAISHTA, 1940

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MACA.No. 447 of 2013

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AGAINST THE AWARD IN OPMV 11/2010 of MACT PALA DATED 27-08-2012

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APPELLANT(S)

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GOPI, S/O.KESAVAN, POWATH VADAKKETHIL HOUSE, KORUTHODU PALLIPPADY BHAGOM, ERUMELY NORTH VILLAGE

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BY ADV.SRI.ABRAHAM MATHEW (VETTOOR)

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RESPONDENTS/RESPONDENTS:

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1. BIJU GEORGE, S/O. GEORGE, VETTUKALLEL HOUSE,

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KORUTHODU,

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ERUMELY NORTH VILLAGE, PIN-686509

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2. THE UNITED INDIA INSURANCE CO.LTD,

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REPRESENTED BY ITS DIVISIONAL MANAGER KOTTAYAM PIN-686001

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R1 BY ADV. SRI.RAJESH CHAKYAT R2 BY ADV. SRI.M.HARISHARMA

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BY SRI.JOHN JOSEPH VETTIKAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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BNG

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P.D.RAJAN, J

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- - - - - - - - - - - - - - - - - - - M.A.C.A No.447 of 2013

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- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5^th day of June, 2018

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JUDGMENT

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This appeal is preferred against the award in O.P(MV) No.11/2010 of the Motor Accidents Claims Tribunal, Pala by the injured. On 27.10.2009, the appellant sustained injuries in a motor accident, while he was travelling as a pillion rider in KL-7/AQ 4370 and the learned Tribunal awarded compensation of Rs.1,47,718/with interest and cost. Being satisfied by that award amount, the injured preferred this appeal.

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In the lower court, the owner of the vehicle did not contest the claim. 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 A11. The disability certificate was marked as Ext.X1. Respondents did not adduce any evidence.

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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

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M.A.C.A No.447 of 2013

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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 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

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M.A.C.A No.447 of 2013

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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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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 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

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M.A.C.A No.447 of 2013

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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 the appellant was a salesman in a toddy shop and was getting Rs.9,000/- per month. Ext.A11 is the copy of the ID card issued by the Welfare Fund Inspector, Kottayam. It is true that, the injured is a toddy tapper and he sustained serious injuries. Ext.X1 disability certificate shows 11% permanent disability and he sustained serious injuries to right knee, leg, ankle and foot.

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The learned Tribunal took Rs.4,000/- as the monthly income of the appellant. In view of the decision of apex court in Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd (2014 (2) SCC 735) , the monthly income is taken as Rs.7,000/-. The learned Tribunal awarded the following amount as compensation.

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1. Loss of earning	Rs.12,000/-
2. Transportation exp.	Rs.3,000/-
3. Extra Nourishment	Rs.1,000/-
4. Damage to clothing, etc.	Rs.500/-
5. Bystander expense	Rs.3,000/-

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M.A.C.A No.447 of 2013

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Medical Expenses i) other incidental Rs.60,538/7. Pain and suffering Rs.18,000/8. Loss/reduction earning capacity Rs.43,680/9. Loss of amenities Rs.6,000/- Total Rs.1,47,718/-

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Rs.1,47,718/-

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In view of the decision of the apex court in Raj Kumar v.

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Ajay Kumar [2011(1) KLT 620 (SC)], the disability is taken as 11%. Hence the following amount is awarded as enhanced compensation. Loss of income for three months at the rate of Rs.7,000/- is Rs.21,000/-. The Tribunal awarded Rs.12,000/-. The balance amount is Rs.9,000/-. The age of the injured was 48 years and the multiplier is

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The compensation for permanent disability is Rs.7,000x12x13x11/100=Rs.1,20,120/-. The learned

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Tribunal awarded Rs.43,680/-, hence the balance is Rs.76,440/-. In addition to that, following amount is awarded as enhanced compensation. For extra nourishment Rs.2,000/-, for pain and suffering Rs.7,000/-, for loss of amenities Rs.9,000/-. The total amount comes

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to R.1,03,440/- (Rs.76,440+ 2,000+ 7,000+ 9,000+9,000) as enhanced compensation.

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M.A.C.A No.447 of 2013

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In the circumstances, the appellant is entitled to get enhanced compensation of Rs.1,03,440/(Rupees One Lakh Three Thousand Four Hundred and Forty only) with 7.5% interest and proportionate cost in addition to the award amount by the Tribunal. The insurer is directed to satisfy the award amount 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, accordingly.

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Sd/- P.D.RAJAN JUDGE

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bng

Gopi, S/O.Kesavan v. Biju George, S/O. George

Case brief

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Gopi, S/O.Kesavan v. Biju George, S/O. George

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