Allowed

Johny K.O v. Biji Anilkumar

Kerala HC19 Jun 2018MACA/700/2018

Case brief

AI extract

What is this about?

This appeal against a Motor Accidents Claims Tribunal award was allowed. The High Court enhanced the compensation from Rs.91,800 to Rs.1,38,600. The court held that the tribunal erred in using Rs.6,000 monthly income instead of the appellant's actual Rs.25,000 salary and increased the disability rating compensation accordingly.

What did the court decide?

Enhanced compensation awarded: total of Rs. 1,38,600 (original Rs. 91,800 + enhanced Rs. 46,800) with 9% interest per annum over Rs. 12% interest on default.

Johny K.O Vs Biji Anilkumar — 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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TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940

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MACA.No. 700 of 2018

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IN OPMV 274/2014 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA

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APPELLANT(S)/PETITIONER

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JOHNY K.O., AGED 58 YEARS, S/O. OUSEPH, KACHARAKKAL HOUSE, MAPRANAM DESOM, MADAYIKONAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADV. V.BINOY RAM

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RESPONDENT(S)/RESPONDENTS:

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1. BIJI ANILKUMAR, W/O. ANILKUMAR, KUNNUKATTIL HOUSE, THANISSERY P.O., IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680 701.

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2. SOORAJ,

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S/O. PRABHAKARAN, MAPPULLY HOUSE, PAZHAYI, NENMANIKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680301.

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3. THE MANAGER, NATIONAL INSURANCE CO.LTD., 1ST FLOOR, MALIEKKAL BUILDING, MAIN ROAD, IRINJALAKUDA, PIN - 680 121.

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R3 BY ADV. S.K. AJAY KUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RVCS. 18/07/2018

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P.D. RAJAN, J.

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M.A.C.A. No.700 of 2018

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Dated this the 19^th day of June, 2018

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J U D G M E N T

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This appeal is preferred against the award in O.P.(M.V.) No.274 of 2014 of the Motor Accidents Claims Tribunal, Irinjalakuda by the injured. Appellant sustained injuries in a motor accident on 30.10.2013 and the learned Tribunal awarded compensation of Rs.91,800/(Rupees Ninety One Thousand Eight Hundred only) with interest and cost as compensation. Being aggrieved by that, the injured preferred this appeal.

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There was no dispute with regard to the accident in the lower court. Appellant's case in the lower court was that on 30.10.2013 while he was riding a motorcycle KL-8/Q-3467 through Irinjalakuda-Thrissur public road, another vehicle KL-45/D-9837 driven in a rash and negligent manner hit against the motorcycle, thereby he sustained a fracture to pelvis. The driver and owner were ex pate. The insurer admitted the insurance of the vehicle. Appellant's documents were marked as

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M.A.C.A. No.700 of 2018 2

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Exts.A1 to A15.

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Learned counsel appearing for the appellant contended that the Doctor certified 10% disability, but the learned Tribunal took only 5% disability for assessing the disability compensation. There was no dispute with regard to other aspects.

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In permanent injury case, the injured is entitled to get higher income than that in death case. 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. 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

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M.A.C.A. No.700 of 2018 3

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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 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 cases 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

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M.A.C.A. No.700 of 2018 4

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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.

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Ext.A14 is the disability certificate issued by Dr.Jose Kurian Kattookaran which shows that the injured sustained whole body disability at 10% as per the MC Bride's Scale. There was no objection from the side of the insurer at the time of marking Ext.A14 document. If that be the position, the disability compensation has to be increased. Appellant was working at Merchant Navy and was getting Rs.25,000/- per month. The learned Tribunal, in the absence of any evidence, took Rs.6,000/- for assessing disability. Appellant was aged 55 years at the

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M.A.C.A. No.700 of 2018 5

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time of accident and the multiplier is 11. Accordingly he is entitled to get an amount of Rs.79,200/(6000x12x11x10%) towards disability. The Tribunal awarded Rs.32,400/- on that head and the balance is Rs.46,800/-. No further increase is necessary on the other heads. Hence, the appellant is entitled to get an enhanced compensation of Rs.46,800/- (Rupees Forty Six Thousand Eight Hundred only) with 9% interest per annum from the date of petition till realization with proportionate cost in addition to Rs.91,800/- (Rupees Ninety One Thousand Eight Hundred only) awarded by the learned Tribunal. The insurer is directed to satisfy the award within a period of thirty 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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M.A.C.A is disposed of as above.

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Sd/- P.D. RAJAN, JUDGE

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/True Copy/ P.A. To Judge

Johny K.O v. Biji Anilkumar

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Johny K.O v. Biji Anilkumar

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