Important Points:
" While fixing all account of compensation, the theory is that the injured should be restored back to the pre-accident stage- In permanent disability case what is calculated is the future earning of the injured payable to him-In case of death, dependency is calculated to the family members of the deceased. But in case of personal injury, one third of the income from the loss of earning need not be deducted since the injured is alive.
" There was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs.3000 per month-The appellant was working as a coolie -Cannot expect him to produce any documentary evidence to substantiate his claim- In the absence of any other evidence contrary to the claim made by the claimant-The Tribunal should have accepted the claim of the claimant.

1. This appeal has been preferred by the injured against the award in O.P(MV) No.37/2003 of the Motor Accidents Claims Tribunal, Thodupuzha (for short 'Tribunal'). The appellant filed the above petition for compensation under Section 166 of the Motor Vehicles Act, 1988 and the Tribunal awarded compensation of Rs.3,21,200/-. He was a painter aged 26 years and was getting Rs.3,500/-per month, but the Tribunal took Rs.2,000/-as his monthly income. Being aggrieved by that, the injured preferred this appeal.

2. It would be relevant and useful to refer the facts leading to the accident. The respondents did not dispute in the lower court. The claimant's case was that on 15.12.2002, while he was travelling in an autorickshaw KL.6B/3252 from Vazhavara to Kattapana, when he reached near Vellayamkudy, the driver of the autorickshaw swerved the vehicle, as a result, he lost the control of the vehicle, hit against the wall of a toddy shop and the petitioner sustained serious injuries. Immediately, he was removed to hospital. The owner cum driver was set ex-parte. The insurer admitted the insurance of the vehicle.

3. This claim petition was tried along with OP(MV) No.91/2003 and evidence was recorded in OP(MV) No.37/2003. The claimant's evidence consist of oral testimony of PW1 and documentary evidence of Exts.A1 to A21. The witness was cross examined at length, but nothing could be elicited from him which may make his testimony unworthy of evidence. The Tribunal after thorough dissection of facts found his testimony reliable and dependable. The respondents in the lower court could not show any cogent reason as to why the testimony of the witness should not be accepted as true.

4. Adv. Mathew John, the learned counsel for the appellant urged that just compensation was not awarded by Motor Accidents Claims Tribunal and he advanced three points: (I) that the appellant sustained 90% permanent disability, now he is fully bedridden and unable to do any work, hence his disability is 100%. (II) Secondly he is a painter by profession who was getting Rs.3,500/-per month, but for assessment of disability compensation, Tribunal reduced the monthly income to Rs.2,000/-which is illegal. (III) Thirdly the deduction of 1/3rd of the income towards personal and living expenses is not permissible in injury cases.

5. In individual injury cases the compensation has to be calculated separately as pecuniary and special damages. The purpose is to compensate the injured so far as money can restore. It is well settled that while fixing the amount of compensation, the Court has to do some guess work to certain extent. Support can be taken from decided cases so as to find out the direction of judicial opinion in fixing the quantum in similar cases. It is true that compensation must be just compensation. A determined attempt must be made for placing the sufferer monetarily in the same situation in which he would have been if the unfortunate event had not occurred, but luxury has to be avoided. The court has to take care to see that the undesirable events does not become an occasion for sudden large benefit from misery. 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.

6. Apex court in Yadava Kumar v. D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567) reiterated the principle in relation to the assessment of damages for personal injuries cases as follows:

“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