Anitta Mariya Saju v. Bhabhadas alias Bhavadas; Nishad; Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **MACA.No.4680 OF 2019** **AGAINST THE AWARD IN OP(MV) No. 2212/2010 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/S:** **ANITTA MARIYA SAJU, AGED 22 YEARS D/O.SAJU DAVID, CHITTILAPPILLY HOUSE, EAST FORT.P.O, KIZHAKKUMPATTUKARA DESOM, THRISSUR DIT** **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENT/S:** |**1**|**BHABHADAS @ BHAVADAS, AGED 34 YEARS**| |---|---| ||**S/O.APPUKUTTAN, KAVALAPPADAM HOUSE,**| ||**MOOLAMKODU, ALATHUR VADAKKENCHERRY, PALAKKAD-**| ||**678683**| |**2**|**NISHAD,, S/O.MOOSAKUTTY, MULLAPPARAMBIL HOUSE,**| ||**EDAPALLY NORTH, ERNAKULAM-682024**| |**3**|**ORIENTAL INSRUANCE CO LTD.,**| ||**DEEPTHI BLDG, 1ST FLOOR, PALLIMUKKU, M.G.ROAD,**| ||**ERNAKULAM-682016 REPRESENTED BY BRANCH MANAGER**| ## **OTHER PRESENT:** ## **SMT K.S.SANTHI- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 4680 of 2019 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2212 of 2010 on the file of the Motor Accidents Claims Tribunal, Thrissur, 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 13.05.2010, while she was travelling in a car bearing registration No.KL-8/AR-9405. At the place of accident, the car was hit by a lorry bearing registration No.KL-2/Q-8331 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant, who was minor aged 13 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.25,00,000/- under various heads. 2. Before the Tribunal, the respondents 1 and 2 remained absent and they were set ex parte. -3- MACA. No. 4680 of 2019 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the lorry involved in the accident; however, denying the negligence alleged against its driver. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with the connected matters. Exts.A1 to A23 were marked on the side of the claimants. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. 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 offending lorry by its 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.6,19,770/-, together with interest at the rate of 8% per annum from the date of petition, i.e., 30.11.2010 till realisation, with proportionate -4- MACA. No. 4680 of 2019 cost, and the insurer was directed to satisfy the award. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 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 the compensation awarded by the Tribunal under various 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 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 -5- MACA. No. 4680 of 2019 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 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 various heads reads thus; -6- MACA. No. 4680 of 2019 |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded| |---|---|---|---| |1|Loss of earning (total)||| |2|Medical expenses|1000000|282970| |3|Bystander's expenses||3800| |4|Transportation expenses|5000|2000| |5|Extra nourishment|10000|5000| |6|Damage to clothing etc.|1000|1000| |7|Pain and suffering|200000|300000| |8|Compensation for continuing<br>or permanent disability|1000000|| |9|Compensation for future<br>prospects|1000000|| |10|Loss of amenities and<br>enjoyment of life|100000|| |11|Personal assistance|10000|25000| |12|Future medical expenses|300000|| ||Total|2500000|**619770**| 11. At the time of accident, the appellant was a minor, aged 13 years. The document marked as Ext.A11 is the discharge summary. As per medical records, the appellant sustained contusion neck, contusion left thigh, burst fracture C5 and C6 with bord compression quadriparesis traumatic SAH. In Ext.A19 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 28%. The Tribunal accepted the -7- MACA. No. 4680 of 2019 assessment of disability in Ext.A19, for the purpose of awarding disability compensation. 12. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC 396]** , a decision relied on by the Tribunal, 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 -8- MACA. No. 4680 of 2019 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 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 and<br>to be suffered in future, mental and<br>physical shock, hardship, inconvenience<br>and discomforts and loss of amenities in<br>life on account of permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the period<br>of hospitalisation.|Rs.25,000/-| |Medical and incidental expenses during the<br>period of hospitalisation for 58 days.|Rs.25,000/-| -9- MACA. No. 4680 of 2019 Future medical expenses for correction of Rs.25,000/the malunion of fracture and incidental expenses for such treatment. **TOTAL:Rs.3,75,000/-** 13. Viewed in the light of the law laid down by the Apex Court in **Master Mallikarjun's case (supra)** , the compensation awarded by the Tribunal under various heads cannot be said to be on the lower side. In the result, the appeal fails, and the same is accordingly, dismissed. All pending interlocutory applications in this appeal are closed. **Sd/ANIL K.NARENDRAN JUDGE** das