Allowed

Elizabath John v. G.Sampurnam

Kerala HC26 Nov 2018MACA/610/2015

Case brief

AI extract

What is this about?

This Motor Accidents Claims Tribunal appeal against an award for permanent disability injury. The Court allowed the appeal, holding that the Tribunal erred in reducing disability percentage without a second medical opinion per Supreme Court precedent. Compensation was enhanced to Rs. 3,69,000.

What did the court decide?

Enhanced compensation of Rs. 3,69,000 with 9% interest awarded. Insurer directed to satisfy award within 30 days or face 12% default interest.

Elizabath John Vs G.Sampurnam — 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 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940

¶5

MACA.No. 610 of 2015

¶6

AGAINST THE AWARD IN OPMV 516/2012 of MACT PALA DATED 10-10-2014

¶7

APPELLANT/PETITIONER:

¶8

ELIZABATH JOHN

¶9

AGED 45 YEARS

¶10

W/O.T.V. SAJI, RESIDING AT THETTAYIL HOUSE, PEERMADE P.O., IDUKKI DISTRICT, NOW RESIDING AT 39/2929-B, VALIPARAMBIL, CC-59/2149, IST FLOOR, VALANJAMBALAM, MANIKKARTH ROAD, KOCHI - 682 016.

¶11

BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD

¶12

RESPONDENTS/RESPONDENTS:

¶13

1 G.SAMPURNAM RESIDING AT 38, BOTHAIAHNADU STREET, KAVERIPATTINAM P.O., KRISHNAGIRI, DISTRICT, TAMIL NADU - 635001

¶14

2 RAJA M. S/O. MARIAPPAN, RESIDING AT NEW NO.1, 27, PACHINAMPATTI, KADAGATHUR P.O.- 636701, DARMAPURI DISTRICT.

¶15

3 NATIONAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS MANAGER, CHERUPUSHPAM BUILDNG, MAIN ROAD, PALA - 686 575.

¶16

BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.V.S.SHIRAZ BAVA

¶17

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA.No. 610 of 2015

JUDGMENT

This appeal is preferred against the award in OP(MV) No.516/2012 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.7,76,600/- with 7.5% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal.

¶22

The accident was not disputed by the respondents in the lower court. The petitioner's case was that on 08.09.2011 at 2.10 pm, the petitioner was travelling with another passenger in a car KL-07/BN-5935 through Harur - Thiruppathoor public road, when they reached near Mampetty in Dharmapuri District of Tamil Nadu State, a bus TN-49/M8007 driven in a rash and negligent manner hit against the car, as a result, the appellant and other passenger sustained serious injuries. Immediately, they were removed to hospital.

¶23

The driver and owner were set ex-parte in the lower court. The insurer admitted the insurance of the offending vehicle. This case was tried along with another OP(MV) No.571/2012. Petitioners evidence consist of oral

¶24

MACA.No. 610 of 2015

¶25

¶26

testimony of PW1 and documentary evidence of Exts.A1 to A28. Respondents did not adduce any oral or documentary evidence.

¶27

The learned counsel appearing for the appellant contended that the appellant sustained 15% permanent disability, but the learned Tribunal reduced the disability to 8% without obtaining any second medical opinion. She is working in a private company and was getting Rs.25,000/- per month. Respondents have no dispute with regard to the disability certified by the Doctor in the lower court. The appellant was not referred to another Medical Board before reducing the percentage of disability from 15% to 8%.

¶28

5. In Yadava Kumar v. D.M. National Insurance

¶29

Co. Ltd. (2010 (8) SCALE 567) Apex Court reiterated the principle in relation to the assessment of damages for personal injuries cases as follows:

¶30

“ 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

¶31

MACA.No. 610 of 2015

¶32

¶33

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.

¶34

10. 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.”

¶35

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 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.

¶36

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

¶37

MACA.No. 610 of 2015

¶38

¶39

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 the victim and also on the nature of evidence in that case.

¶40

The dispute is with regard to the disability alone. She is entitled to get just amount as compensation. Apex court in Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)] held that when there is any dispute with regard to the disability certified by the doctor, the Tribunal has to refer the claimant to another Medical Board and obtain second medical opinion. That was not done in this case. Therefore, the disability certified in Ext.A11 is approved and the appellant

¶41

MACA.No. 610 of 2015

¶42

¶43

has a permanent disability of 15%. The income is Rs.25,000/and the disability is 15%. The disability compensation is Rs.25,000x12x14x15/100= Rs.6,30,000/-. The learned Tribunal awarded Rs.3,36,000/- and the balance amount is Rs.2,94,000/-. She is also entitled to get loss of income for three months, i.e., Rs.75,000/-. Just amount was awarded towards other heads. No further increase is necessary. The appellant is entitled to get enhanced compensation of Rs.3,69,000/- (Rupees Three Lakhs Sixty Nine Thousand only) with 9% interest and 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.

¶44

This appeal is disposed of, as above.

¶45

Sd/-

¶46

P.D.RAJAN JUDGE

¶47

bng/03.12.2018

Elizabath John v. G.Sampurnam

Case brief

What is this about?

What did the court decide?

Elizabath John v. G.Sampurnam

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

Chandran Pillai Vs Oriental Insurance Co.Ltd.

The Oriental Insurance Co.Ltd. Vs Chandran Pillai

The Oriental Insurance Company Limited Vs K. Saraswathi Amma

Nationala Insurance Company Ltd. Vs Sajan

Vaheeda K.V Vs National Insurance Co.Ltd

National Insurance Company Limited Vs Muhammed C.K