Ashraf Eassa v. United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** **MACA.No.78 OF 2011** **AGAINST THE AWARD IN OPMV 16/2006 DATED 28-04-2010 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/PETITIONER:** **ASHRAF EASSA AGED 19 YEARS, S/O.P.V.EASSA,, DATE OF BIRTH 5.5.91, PUTHIYAVALAPPIL HOUSE,, PUTHANKUNNU POST, CHEERAL (VIA),, WAYANAD DISTRICT.** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENT/RESPONDENT NO:3:** **UNITED INDIA INSURANCE CO. LTD. UNITED INDIA INSURANCE CO.LTD.,, BRANCH OFFICE, NOORNAL BUILDINGS,, SULTHAN BATHERY P.O. 673592 (POLICY NO.101602/31/05/00290).** **BY ADV. SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSURANCE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ..2.. ## **MACA.No.78 OF 2011** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.16 of 2006 on the file of the Motor Accidents Claims Tribunal, Kalpetta, 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 23.11.2015, while he was travelling in an autorickshaw bearing registration No.KL-12/A-1092. At the place of accident, the autorickshaw was hit by a Maruthi Omni van bearing registration No.KL-9/J-5189 driven by the 1[st] respondent, owned by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, the appellant/claimant, who was then a minor aged 13 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of Maruti Omni Van by its 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 driver of the offending vehicle filed a written statement admitting the accident, **MACA.No.78 OF 2011** **==> picture [17 x 9] intentionally omitted <==** however denying the negligence alleged against him. It was contended that the accident occurred due to the rash and negligent driving of the autorickshaw in which the appellant/claimant was a passenger. The owner of the offending vehicle remained absent and he was set _ex parte_ . The insurer filed written statement admitting insurance coverage of the Omni van involved in the accident; however, denying negligence alleged against its driver. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. The appellant/claimant who attained majority was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. The document marked as Ext.C1 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident, as 4%. 4. After considering the pleadings and materials on **MACA.No.78 OF 2011** **==> picture [18 x 9] intentionally omitted <==** record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the Omni Van 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.61,600/-, together with interest at the rate of 7.5% per annum from the date of petition till date of payment, with proportionate cost and the insurer was directed to satisfy the award. 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 Sri. P.K.Manoj Kumar, the learned Standing Counsel for the respondent insurer. 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 ## **MACA.No.78 OF 2011** **==> picture [17 x 8] intentionally omitted <==** 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 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, ## **MACA.No.78 OF 2011** ..6.. 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; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in Rupees)|Amount<br>awarded<br>(in Rupees)|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning<br>(Total)|Nil|Nil|Nil| |2|Loss of earning<br>Partial|Nil|Nil|Nil| |3|Medical<br>and miscellaneous<br>expenses|Rs.30,000/-|Rs.28,300|(acceptable bills<br>for Rs.28,221/-<br>produced)| |4|Future treatment|Nil|Nil|Nil| |5|Bystander expenses|Rs.10,000/-|Rs.5,500/-|250 x 22 days<br>1 person| |6|Transportation<br>expenses|Rs.3,000/-|Rs.500/-|Nil| |7|Extra nourishment|Rs.10,000/-|Rs.1,000/-|| ## **MACA.No.78 OF 2011** ..7.. |8|Damage to clothing,<br>etc|Rs.1,000/-|Rs.500/-|| |---|---|---|---|---| |9|Pain and suffering|Rs.50,000/-|Rs/10,000/-|| |10|Loss of dependency|N.A.|N.A.|N.A.| |11|Loss of consortium|N.A.|N.A.|N.A.| |12|Loss of love and<br>affection|N.A.|N.A.|N.A.| |13|Compensation for<br>permanent disability|Rs.1,00,000/-|Rs.10,800/-|Rs.1,500x12x15<br>x 4/100| |14|Loss of amenities<br>and conveniences,<br>etc|Rs.25,000/-|Rs.5,000/-|N.A.| |15|Any other heads|Nil|Nil|Nil| ||Total||Rs.61,600/-|Rs.61,600/-<br>along<br>with<br>interest at the<br>rate of 7.5%<br>p.a.from<br>the<br>date of filing of<br>the petition till<br>the date of<br>payment.| 11. At the time of accident, the appellant was a minor, aged 13 years. The document marked as Ext.A4 is the wound certificate and Ext.A5 is the discharge card. As per medical records, the appellant sustained communitted fracture right femur, unplaced fracture of distal forth shaft of left radius and contusion on occipital region and that he was hospitalised for the period from 23.11.2005 to 07.12.2005. Ext. A5 discharge certificate shows that he was treated as an inpatient at ## **MACA.No.78 OF 2011** **==> picture [18 x 8] intentionally omitted <==** Government Taluk Headquarters Hospital, Nilambur from 20.05.2009 to 26.05.2009. Ext. A6 series of medical bills are for Rs.28,221/-. He had undergone inpatient treatment for a total period of 22 days. In Ext.C1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 4%. The Tribunal accepted the assessment of disability in Ext.C1, 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 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 ## **MACA.No.78 OF 2011** **==> picture [18 x 9] intentionally omitted <==** 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 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 ..10.. ## **MACA.No.78 OF 2011** ## 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/-| |Future medical expenses for correction of<br>the malunion of fracture and incidental<br>expenses for such treatment.|Rs.25,000/-| |**TOTAL:-**|**Rs.3,75,000/-**| 13. 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 is assessed as 4% in Ext.C1 disability certificate. Therefore, the appellant is entitled for a sum of **Rs.1,00,000/-** as compensation under ## **MACA.No.78 OF 2011** ..11.. this head. 14. 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 inpatient treatment the appellant had undergone for 22 days, a sum of **Rs.12,500/-** can be granted as compensation under this head. 15. 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/-. The appellant had undergone inpatient treatment for 22 days. In the instant case, Ext.A6 series of medical bills are for a sum of Rs.28,300/-. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.40,800/-** (12,500 + 28,300). 16. In **Mallikarjun's case** , under the head _future_ **MACA.No.78 OF 2011** ..12.. _medical expenses for correction of the malunion of fracture and incidental expenses for such treatment_ , the Apex Court awarded a sum of 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. 17. In the result, the total compensation in O.P. (MV)No.1451 of 2015 is re-fixed as Rs.1,53,300/- (1,00,000 + 12,500 + 40,800) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.91,700/-** (Rupees Ninety one thousand seven hundred only) [1,53,000 – 61,600] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The 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 **MACA.No.78 OF 2011** **==> picture [22 x 9] intentionally omitted <==** 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN** **JUDGE** kkj