Alphons Monson (Minor) represented by Aniyamma Monson (Mother, Next Friend) v. The Manager, Infant Jesus School, Managalam, Kidangoor P.O., Kottayam; Joseph K.V.; Oriental Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** ## **MACA.No.2969 OF 2017** **AGAINST THE AWARD IN O.P.(MV)NO.1734/2014 DATED 18-11-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/PETITIONER:** **ALPHONS MONSON (MINOR), AGED 16 YEARS, D/O. MONSON, AYAMKUDIYIL HOUSE, KIDANGOOR SOUTH P.O, AYARKUNNAM, KOTTAYAM DISTRICT REPRESENTED BY MOTHER AS NEXT FRIEND ANIYAMMA MONSON, W/O. MONSON, AGED 45 YEARS, AYAMKUDIYIL HOUSE, KIDANGOOR SOUTH P.O,AYARKUNNAM, KOTTAYAM.** **BY ADVS. SRI.JACOB E SIMON SRI.SHIBY ALEX** ## **RESPONDENTS/RESPONDENTS:** **1 THE MANAGER, INFANT JESUS SCHOOL, MANAGALAM, KIDANGOOR P.O, KOTTAYAM, PIN-686 572. 2 JOSEPH K.V., S/O. VARKEY, KOCHUKARAKAL HOUSE, PUNNATHARA P.O., KOTTAYAM, PIN-686 583.** - **3 ORIENTAL INSURANCE COMPANY LTD., KOTTAYAM, PIN 686 001 REPRESENTED BY ITS BRANCH MANAGER.** - **R3 BY ADV. SRI.P.V.JYOTHI PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2969 OF 2017** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1734 of 2014 on the file of the Motor Accidents Claims Tribunal, Vatakara, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 06.01.2014, while she was travelling in a school bus bearing registration No.KL-35/E-4571, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant, who was aged 11 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,02,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the bus involved in the accident; however, denying the negligence alleged against the **MACA.No.2969 OF 2017** -3- 2[nd] respondent driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with connected matters. Exts.A1 to A12 were marked on the side of the claimants. Both sides have not chosen to adduce any oral evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of bus by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.96,100/-, together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost, and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this **MACA.No.2969 OF 2017** -4- Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for 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 the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. **MACA.No.2969 OF 2017** -5- 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 nonviolation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(`)|Amount<br>allowed<br>(`)|Basic vital details in<br>a nutshell| |---|---|---|---|---| |1|Transport to hospital|1000|1000|Considering hospital<br>consultations| |2|Extra nourishment|10000|3250|Considering<br>hospitalisation for<br>13 days @ 250 per<br>day| |3|Damage to clothing<br>and articles|1000|1000|Moderate rate| **MACA.No.2969 OF 2017** -6- |4|Bystander expenses|10000|5000|In view of the IP<br>treatment<br>and<br>nature<br>of<br>the<br>injuries| |---|---|---|---|---| |5|Medical expenses|30000|30850|Supported<br>by<br>Ext.A12 series of<br>Medical bills.| |6|Future treatment|25000|Not allowed|Not supported by<br>evidence| |7|Pain and sufferings|50000|30000|In view of the<br>grievous injuries| |8|Loss of amenities|25000|25000|Reasonable<br>considering<br>the<br>nature of injuries| |9|Permanent disability|25000|Not allowed|Not supported by<br>evidence| |10|Disfiguration|25000|Not allowed|Not supported by<br>evidence| ||**Total**|**2,02,000**|**96,100**|With 9% interest<br>and proportionate<br>cost.| 12. The accident occurred on 06.01.2014. At the time of accident, the appellant was a minor aged 11 years, who was travelling in a school bus. The document marked as Ext.A10 is the accident register cum wound certificate and Ext.A11 is the discharge summary. The injuries sustained by the appellant, as borne out from medical records, are multiple lacerations right forearm, wrist and hand; lacerated wound 5 x 3 cm over the lateral aspect of right forearm towards wrist dorsal; lacerated wound 5 x 4 cm over the right wrist; lacerated wound 3 x 1 cm right index finger proximal inter phalangeal joint; lacerated wound right middle finger 5 x 2 cm **MACA.No.2969 OF 2017** -7- proximal inter phalangeal joint; avulsion of nail right 4[th] ring finger; avulsion of nail right 5[th] little finger; abrasion 12 x 4 cm over the right forearm; multiple abrasions right thumb, right index finger, right middle finger, right little finger and right hand dorsal; fracture 5[th] metacarpal; fracture P3 ring finger; and fracture base of 1[st] metacarpal. She had undergone inpatient treatment for a period of 13 days. Ext.A12 series of medical bills are for a sum of Rs.30,819/-. X-ray revealed the fractures and after pre-operative evaluation, wound debridement, K wire fixation and suturing were done. Antibiotics, analgesics and supportive treatments were given. Regular follow up dressing, active exercise for finger, wrist, etc. were done and she was discharged on 18.01.2014. 13. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 13 days. The accident is of the year 2014. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from **MACA.No.2969 OF 2017** -8- medical records, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.2,000/-** (3,000 - 1,000). 14. Towards bystander expenses the Tribunal awarded a sum of Rs.5,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,250/-. The accident is of the year 2014 and the appellant had undergone inpatient treatment for 13 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 15. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2014, the compensation under this head is re-fixed as Rs.1,250/-, resulting an additional compensation of **Rs.250/-** (1,250 - 1,000). 16. Towards medical expenses, the Tribunal awarded a sum of Rs.30,850/-, covered by Ext.A12 series of medical **MACA.No.2969 OF 2017** -9- bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 17. The Tribunal awarded no compensation towards future treatment. In the absence of any materials to prove future treatment, the Tribunal cannot be found fault in not granting any compensation. 18. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. The accident occurred when the appellant, a minor aged 11 years, was travelling in a school bus. The injuries sustained by the appellant includes avulsion of right nail right 4[th] ring finger; and avulsion of nail right 5[th] little finger. Considering the nature of injuries sustained at the age of 11 years, the compensation under the head pain and suffering is re-fixed as Rs.35,000/-, resulting an additional compensation of **Rs.5,000/-** (35,000 - 30,000). 19. Towards loss of amenities the Tribunal awarded a sum of Rs.25,000/-. In the absence of any document to prove **MACA.No.2969 OF 2017** -10- any permanent disability on account of the injuries sustained in the accident, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 20. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.7,250/-** (Rupees seven thousand two hundred and fifty only) [2,000 + 250 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] 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. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall **MACA.No.2969 OF 2017** -11- submit her Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with 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** bpr