Ancy v. M. Sreenivasan, Gangadhar V. and New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** ## **MACA.No.549 OF 2010** **AGAINST THE AWARD IN OPMV 385/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD DATED 29.05.2009** ## **APPELLANT/CLAIMANT :** **ANCY, W/O.SIVADASAN,D/O.LATE SIVAN, KADAYANKADU HOUSE, KANNADI P.O., PALAKKAD., NOW RESIDING AT: CHETTIYATHUKULAMBU, KARIPODE P.O., PALAKKAD.** **BY ADV. SRI.LIJU. M.P** ## **RESPONDENTS/RESPONDENTS :** - **1 M.SREENIVASAN, S/O.T.K.MANI, 155 CHENGAM ROAD, STREET NO.1, THIRUVANNAMALAI, DISTRICT, TAMILNADU.** - **2 GANGADHARAN V. S/O.VENKITASWAMY 180/8, METHAR STREET, UCHIMALAI,, KUPPAM P.O., CHENGAM ROAD, THIRUVANNAMALAI, TAMILNADU.** - **3 NEW INDIA ASSURANCE CO.LTD. 106 BIG STREET, VASAVI BUILDING,, 2ND FLOOR, THIRUVANNAMALAI, TAMILNADU.** ## **R3 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.549 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.385 of 2003 on the file of the Motor Accidents Claims Tribunal, Palakkad, which is a petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 25.06.2002, while she was walking along the public road from the school. At the place of accident, the appellant/claimant was hit by a tempo van bearing registration No.TN-25/C-9234 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/ claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the tempo van by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,01,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2, the owner and driver of the offending vehicle, remained absent and they were set ex-parte. The 3[rd] respondent insurer filed **MACA.No.549 OF 2010** **3** written statement, admitting the insurance coverage of the offending vehicle; but denying the liability to pay compensation. It was contended that the compensation claimed under different heads are exorbitant. It was also contended that at the time of accident, the 2[nd] respondent driver had no valid driving licence and badge to drive the vehicle and that, the vehicle had no permit to ply on the public roads in State of Kerala. 3. Before the Tribunal, the claim petition was tried along with other connected matters arising out the very same accident. Exts.A1 to A21 were marked on the side of the appellants/claimants and Exts.B1 to B3 were marked on the side of the respondents. A copy of the medical certificate was marked as Ext.X1. 4. 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 offending vehicle by the 2[nd] respondent driver. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the **MACA.No.549 OF 2010** **4** insured. Under various heads, the Tribunal awarded a total compensation of Rs.34,585/- and the insurer was directed to satisfy the award, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 06.05.2003, till realisation, with a cost of Rs.400/-. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. Since insurance policy of the offending vehicle is admitted by the 3[rd] respondent insurer, service of notice on respondents 1 and 2 is dispensed with. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of compensation awarded by the Tribunal under different heads. 8. 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 **MACA.No.549 OF 2010** **5** 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. ## 9. 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 **MACA.No.549 OF 2010** **6** 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. 10. In the instant case, the compensation awarded by the Tribunal under different heads reads thus; |Head|Amount awarded<br>(in Rs.)| |---|---| |Transportation to hospitals|3,000/-| |Extra nourishment|1,000/-| |Damage to clothing|500/-| |Medical expenses|14,335/-| |Bystander expenses|750/-| |Loss of amenities and loss of<br>studies|5,000/-| |Pain and sufferings|10,000/-| |**Total**|**34,585/-**| 11. The accident occurred on 25.06.2002. At the time of accident, the appellant was a minor student aged 15 years. As evident from Ext.A10 wound certificate and Ext.A14 discharge summary, the appellant sustained abrasion of lower lip 1x1 cm and a mild head injury. She was treated in Fort Hospital, Palakkad and Kovai Medical Centre Hospital Ltd., Coimbatore. The medical bills were produced as Ext.A15 series. **MACA.No.549 OF 2010** **7** 12. Though the appellant claimed an amount of Rs.30,000/- as compensation for permanent disability and loss of earning power, the Tribunal rejected the said claim in the absence of materials to prove any permanent disability on account of the injuries sustained in the accident. In the absence of any reliable materials to prove permanent disability, the Tribunal cannot be found fault in not granting any compensation under this head. 13. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under the head transportation to hospital requires no enhancement in this appeal. 14. Towards extra-nourishment, Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the appellant, who was a minor aged 15 years, sustained mild head injury in her tender age, this Court deem it appropriate to re-fix the compensation under this head as Rs.2,500/- (500x5), resulting an additional compensation of **Rs.1,500/-.** **MACA.No.549 OF 2010** **8** 15. Towards bystander expenses, the Tribunal awarded an amount of Rs.750/-, at the rate of Rs.150/- for 5 days. Considering the nature of injuries and the treatment the appellant had undergone, the compensation under the above head is re-fixed as Rs.1,000/- (200x5), resulting an additional compensation of **Rs.250/-** . 16. Towards damage to clothing, the Tribunal awarded an amount of Rs.500/-. Considering the fact that the accident is of the year 2002, the compensation awarded under this head is re-fixed as Rs.1,000/-. Therefore, the appellant is entitled for an additional compensation of **Rs.500/-** . 17. Towards medical expenses, the Tribunal awarded a sum of Rs.14,335/- covered by Ext.A15 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head requires no enhancement in this appeal. 18. Towards compensation for loss of amenities and loss of studies, Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and the **MACA.No.549 OF 2010** **9** treatment the appellant had undergone, this Court deem it appropriate to re-fix the compensation under this head as Rs.10,000/-, resulting an additional compensation of **Rs.5,000/-** . 19. Towards pain and sufferings, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-.** In the result, the appellant will be entitled for an additional compensation of **Rs.12,250/-** (Rupees Twelve thousand two hundred and fifty only) [1,500+250+ 500+5,000+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 **MACA.No.549 OF 2010** **10** towards Balance Court Fee. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/19/10