AKASH v. Soorya Kumar S/o Madhavan and The Manager, National Insurance Co. Ltd.

M.A.C.A.No.1583 of 2014 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ``` WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 ``` ## **`MACA NO.1583 OF 2014`** ``` AGAINST THE AWARD DATED 17.02.2014 IN OP(MV)NO.409 OF 2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ``` APPELLANT/CLAIMANT: ``` ## **`AKASH`** ``` S/O.SURESH KUMAR, MANATTY HOUSE, MULANGU DESOM, THOTTIPAL VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, REPRESENTED BY NATURAL GUARDIAN MOTHER, RISHA W/O.SURESH KUMAR, MANATTY HOUSE, MULANGU DESOM, THOTTIPAL VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SOORYA KUMAR S/O.MADHAVAN, KOTTIKKAL HOUSE, MULANGU DESOM, THOTTIPAL VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680310.`** - **`2 THE MANAGER NATIONAL INSURANCE CO.LTD., IRINJALAKUDA-680121. BY ADVS. SMT.RAJI T.BHASKAR`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1583 of 2014 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.409 of 2009 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 21.01.2008, while he was walking through Mulangu Thottipal Road. At the place of the accident, the claimant - who was a minor aged 5 years - was knocked down by a motorcycle bearing registration No.KL-08/N-1703, owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the motorcycle by the 1[st] respondent, a claim petition was filed before the Tribunal claiming a total compensation of Rs.1,04, 500/under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cum-rider remained absent and he was set ex-parte. The 2[nd] respondent insurer filed a written statement admitting insurance coverage of the motorcycle involved in the accident. The insurer denied the negligence alleged against the 1[st] respondent rider. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A8 were marked on the M.A.C.A.No.1583 of 2014 3 side of the claimant. The doctor, who issued Ext.A6 disability certificate, was examined as PW1. The 2[nd] respondent insurer has not chosen to adduce any oral or documentary evidence. 4. After considering the pleadings and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle by the 1[st] respondent owner cum rider. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.39,970/-, together with interest at the rate of 7.5% per annum from 25.04.2009 till realisation, with proportionate cost. The operative portion of the award reads thus; “In the result, the petition is allowed awarding compensation of Rs.39,970/- (Rupees thirty nine thousand, nine hundred and seventy only) with interest at the rate of 7.5% from the date of petition till realisation and also proportionate costs. The amount of compensation shall be paid by the 2[nd ] respondent by way of cheque for the court fee amount of Rs.418/- in the name of MACT, Irinjalakuda, cheque for Rs.13,000/- in the name of the mother of the petitioner and another cheque for the balance amount in the name of the minor petitioner for fixed deposit in a nationalised bank till he attains majority.” 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant-claimant is before this Court in this M.A.C.A.No.1583 of 2014 4 appeal, which was one filed along with C.M.Appl.No.1 of 2014 for condonation of the delay of 13 days in filing this appeal, which was condoned by the order dated 22.12.2021. 6. On 22.12.2021, when this appeal came up for admission, this Court admitted the matter on file. The learned Standing Counsel entered appearance for the 2[nd] respondent insurer. Since the insurer has admitted insurance coverage of the offending vehicle, service of notice on the 1[st] respondent owner-cum-rider was dispensed with. 7. Heard the learned counsel for the appellant-claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. 8. The issue that arises for consideration in this appeal is as to whether the appellant-claimant is entitled to enhancement of the compensation awarded by the Tribunal under various heads. 9. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that M.A.C.A.No.1583 of 2014 5 the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. ## 10. In **National Insurance Company Ltd. v. Pranay Sethi** **[(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |SI.<br>No.|<br>Head of claim|Amount<br>claimed|Amount<br>awarded|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Transportation<br>expenses|2,000/-|<br>1,000/-|| |2|Damage to clothing|500/-|<br>500/-|| |3|Extra nourishment|1,000/-|<br>500/-|| |4|Medical and<br>miscellaneous|35,000/-|<br>12,220/-|| |5|By stander's expense|1,000/-|<br>750/-|Rs.150x5 days| |6|Pain and suffering|20,000/-|<br>25,000/-|| |7|Permanent disability|30,000/-||| M.A.C.A.No.1583 of 2014 6 |8|Loss of earning power|15,000/-||| |---|---|---|---|---| ||Total|1,04,500/-|<br>39,970/-|Rs.39,970/-<br>along<br>with<br>interest<br>at<br>the<br>rate of 7.5% p.a<br>from 25.04.2009<br>till realisation| 12. At the time of the accident, the appellant was a minor, aged 5 years. The document marked as Ext.A3 is the wound certificate, as per which he sustained a fracture of the lower end of the tibia (L), a lacerated wound of 4cm and 2cm on the right side of the face and an abrasion and contusion on the forehead. Ext.A4 is the discharge summary issued from Elite Mission Hospital, where he had undergone inpatient treatment from 21.01.2008 to 26.01.2008. In Ext.A6 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 7.5%. Though the doctor who issued Ext.A6 disability certificate was examined as PW1, the Tribunal did not take into account the disability in Ext.A6 disability certificate, on the ground that the claimant is a growing child and the injury is of a minor nature, which would not cause any disability of permanent nature. 13. Having considered the nature of injuries sustained, as evidenced by Ext.A3 wound certificate, and the disability certified in Ext.A6, which was proved by the oral testimony of the doctor as PW1, this Court finds no reason to sustain the reasoning of the Tribunal in not accepting the disability assessed in Ext.A6 disability M.A.C.A.No.1583 of 2014 7 certificate, for the purpose of granting disability compensation to the appellant. Therefore, it is held that the appellant will be entitled to disability compensation taking the permanent disability as 7.5%, as assessed in Ext.A6 disability certificate. 14. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC 396]** , a decision relied on by the learned counsel for the appellant, the Apex Court laid down the principles regarding payment of compensation for injuries sustained by children, resulting permanent disability. In the said decision, the Apex Court held that in the case of children suffering disability on account of motor accident, the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick. Paragraph 12 of the said decision reads thus; “12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for M.A.C.A.No.1583 of 2014 8 treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalisation for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:- Head Compensation amount Pain and suffering already undergone and to Rs.3,00,000/be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life on account of permanent disability. Discomfort, inconvenience and loss of Rs.25,000/earnings to the parents during the period of hospitalisation. Medical and incidental expenses during the Rs.25,000/period of hospitalisation for 58 days. Future medical expenses for correction of Rs.25,000/the malunion of fracture and incidental expenses for such treatment. **TOTAL:Rs.3,75,000/-** 15. Going by the law laid down by the Apex Court in **Master** **Mallikarjun's case (supra)** , for permanent disability up to 10%, the compensation under the head _pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life on account of permanent disability_ shall be Rs.1,00,000/-. In the instant case, the permanent disability of the appellant assessed in M.A.C.A.No.1583 of 2014 9 Ext.A6 disability certificate is 7.5%. Therefore, the appellant is entitled to a sum of **Rs.1,00,000/-** as compensation under this head. 16. In **Mallikarjun's case** , the injured had undergone inpatient treatment for a period of 58 days. Therefore, under the head _discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation,_ the Apex Court awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from Ext.A3 wound certificate and Ext.A4 discharge summary, the appellant is granted a sum of **Rs.10,000/-** under the head discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation. 17. In **Mallikarjun's case** , under the head _medical and incidental expenses during the period of hospitalisation_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, Ext.A7 series of medical bills are for a sum of Rs.12,220/-. Considering the nature of the injuries sustained and the treatment the appellant had undergone, he is granted a sum of **Rs.15,000/-** under the head medical and incidental expenses during the period of hospitalisation. 18. In **Mallikarjun's case** , under the head _future medical expenses for correction of the malunion of fracture and incidental_ M.A.C.A.No.1583 of 2014 10 _expenses for such treatment_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, the pleading and evidence on record would not indicate malunion of fracture or requirement for future treatment. Therefore, the appellant is not entitled to any amount under this head. 19. In the result, the total compensation payable to the appellant-claimant is refixed as Rs.1,25,000/- (1,00,000 + 10,000 + 15,000), resulting in an additional compensation of **Rs.85,030/-** (1,25,000 – 39,970) (Rupees Eighty Five Thousand and Thirty only) in this appeal, which will carry interest at the rate of **7%** per annum from the date of petition till realisation. The 2[nd] respondent-insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant-claimant towards Balance Court Fee and Legal Benefit Fund. Payment of additional compensation granted in this appeal shall be made to the appellant-claimant as per the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. The appellant to furnish his Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code M.A.C.A.No.1583 of 2014 11 of the branch) before the Tribunal, with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** yd