Ameen Nasweeth v. Sreenivasan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **MACA.No.1334 OF 2011** **AGAINST THE AWARD IN OPMV 139/2005 DATED 18-11-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/PETITIONER:** **AMEEN NASWEETH, S/O SEETHIKOYA, KALATHINGAL HOUSE, MAMPAD.P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.K.M.SATHYANATHA MENON** ## **RESPONDENTS/RESPONDENTS 1, 2 & 4:** **1 SREENIVASAN, (DEAD)* S/O VELUKUTTY, MANGALANGAD HOUSE, PUTHUKODE P.O., RAMANATTUKARA, PIN - 678 687. 2 THE DIRECTOR OF AGRICULTURE, DIRECTORATE OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM P.O. - 675 001. 3 KERALA STATE INSURANCE DEPARTMENT, DISTRICT OFFICE, MALAPPURAM- 676 505.** *** STATUS OF THE 1ST RESPONDENT SHOWN AS 'DEAD' AS PER THE ORDER DATED 26.02.2020** ## **OTHER PRESENT:** ## **SMT S.L.SYLAJA, GOVERNMENT PLEADER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1334 of 2011 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.139 of 2005 on the file of the Motor Accidents Claims Tribunal, Manjeri, 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 14.09.2004, while he was peddling a bicycle. At the place of accident, he was knocked down by a jeep bearing registration No.KL-01/D-5463 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the claimant, who was then a minor aged 14 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the jeep by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent driver did not file any written statement. The 2[nd] respondent owner filed written statement admitting the ownership of the jeep involved in the accident; however, denying negligence alleged against the 1[st] respondent driver. MACA No.1334 of 2011 3 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the jeep involved in the accident; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A10 were marked on the side of the claimant. The document marked as Ext.X1 is the disability certificate issued by the Medical Board assessing the permanent disability of the claimant, on account of the injuries sustained in the accident. The respondents have not chosen to adduce any oral or documentary 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 the jeep by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent insured. Under various heads, the Tribunal awarded a total compensation of Rs.38,498/- (which was rounded off to Rs.38,500/-), together with interest at the rate of 7% per annum from the date of petition till realisation, with a cost MACA No.1334 of 2011 4 of Rs.500/-, 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 Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also and the learned Government Pleader for respondents 2 and 3. 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 MACA No.1334 of 2011 5 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; |Sl.<br>No.|Head of claim|Amount awarded<br>(in Rupees)|Basis/vital details<br>in a nutshell| |---|---|---|---| |1|Transport to the hospital|500|| |2|Damage to clothing|250|| |3|Extra nourishment an<br>bystander expenses|1,100|| |4|For reviews(10 times)|1,000|| MACA No.1334 of 2011 6 |5|Pain and suffering|10,000|| |---|---|---|---| |6|Medical expenses|1,648|| |7|Disability compensation|24,000|(15,000 X 16 X<br>10/100)| ||Total|Rs.38,498/-<br>Rounded off to<br>**Rs.38,500/-**|| 12. The accident occurred on 14.09.2004. At the time of accident, the appellant was a minor aged 14 years. The document marked as Ext.A2 is the wound certificate and Ext.A6 is the treatment book. As per Ext.A2 wound certificate, in the accident, the appellant sustained lacerated wound over occipital region. As per Ext.A6 treatment book he sustained hemorrhagic contusion parietal and occipital region, depressed comminuted fracture right parietal bone, hemosinus sphenoid sinus, etc. In Ext.X1 disability certificate issued by the Medical Board, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. The Tribunal accepted the percentage of disability assessed in Ext.X1, for the purpose of awarding disability compensation. ## 13. 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 MACA No.1334 of 2011 7 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 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 MACA No.1334 of 2011 8 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:- |compensation as follows:-|| |---|---| |Head|Compensation<br>amount| |Pain and suffering already undergone<br>and to be suffered in future, mental<br>and<br>physical<br>shock,<br>hardship,<br>inconvenience and discomforts and loss<br>of amenities in life on account of<br>permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the<br>period of hospitalisation.|Rs.25,000/-| |Medical and incidental expenses during<br>the period of hospitalisation for 58<br>days.|Rs.25,000/-| |Future medical expenses for correction<br>of the malunion of fracture and<br>incidental expenses for such treatment.|Rs.25,000/-| |**TOTAL**|**Rs.3,75,000/-**| 14. 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 MACA No.1334 of 2011 9 appellant assessed in Ext.X1 disability certificate is 10%. Therefore, the appellant is entitled for a sum of **Rs.1,00,000/-** as compensation under this head. 15. 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 by the appellant and inpatient treatment he had undergone for a period of 11 days, a sum of **Rs.10,000/-** is granted as compensation under this head. 16. 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.A10 series of medical bills are for a sum of Rs.1,650/-. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.7,500/-** . 17. In **Mallikarjun's case** , under the head _future medical expenses for correction of the malunion of fracture and incidental expenses for such treatment_ , the Apex Court awarded a sum of MACA No.1334 of 2011 10 Rs.25,000/-. In the instant case, the pleadings and materials on record would not indicate malunion of fracture or requirement for future treatment. Therefore, the appellant is not entitled for any amount under this head. 18. In the result, the total compensation in O.P.(MV)No. 139 of 2005 is re-fixed as Rs.1,17,500/- [1,00,000 + 10,000 + 7,500] in this appeal. Consequently, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.79,000/-** (Rupees Seventy nine thousand only) [1,17,500 – 38,500] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 527 days in filing this appeal, which is condoned by the order in C.M.Appl. No.2033 of 2011, on condition that, in case enhanced compensation is granted in this appeal, the appellant/claimant shall not be entitled for interest for the said amount for the period of delay. 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 MACA No.1334 of 2011 11 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.D1-62475/2016 dated 07.11.2019. The appellant/claimant shall 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 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** MIN