Bindhuja (minor) through father Viswambharan v. P.S. Sirajuddin and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** ## **MACA.No.2536 OF 2008** **AGAINST THE AWARD IN OP(MV)NO.1252/2002 DATED 30-06-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER IN OP(MV):** **BINDHUJA, D/O.VISWAMBHARAN, AGED 7 YEARS, RESIDING AT ELAYACHIVEETTIL, KAKKAZHAM,, AMBALAPUZHA, ALAPPUZHA (SINCE THE PETITIONER IS A, MINOR SHE IS BEING REPRESENTED IN THIS PETITION BY HER FATHER AND NATURAL GUARD MR.M.VISWAMBHARAN AGED 34 YEARS, S/O.DIVAKARAN, ELAYACHIVEETTIL, KAKKAZHAM, AMABALAPUZHA, WARD VII.** **BY ADV. SRI.M.V.MATHEW** ## **RESPONDENTS/RESPONDENTS IN O.P.(MV):** - **1 P.S.SIRAJUDIN, S/O.SAITH, HOUSE NO.112/36 PANAMPALLY NAGAR, COCHI CORPORATION, ERNAKULAM, VILLAGE, KANAYANNOOR TALUK.** - **2 V.A.MUHAMMED, VETTAKKATTUTHARA CHANDIROOR P.O., CHERTHALA.** - **3 THE UNITED INDIA INSURANCE CO. LTD. DOOR NO.3, JOSE TRUST BUILDING, CHITTOOR ROAD, COCHIN REPRESENTED BY ITS BRANCH MANAGER,ALAPPUZHA.** - **4 SALAHUDIN, S/O.ALIKUNJU EZHARCHIRAYIL, KAKKAZHAM, ALAPPUZHA.** - **5 T.BABU S/O.THANKAPPAN THEKKEPALLAM KAROOR, AMBALAPUZHA.** - **6 NATIONAL INSURANCE CO. LTD. ALAPPUZHA REPRESENTED BY ITS BRANCH MANAGER.** **R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSURANCE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2536 OF 2008** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1252 of 2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha, 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 02.10.1999, while she was travelling in an autorickshaw bearing registration No.KL-4/5611 driven by the 4[th] respondent, owned by the 5[th] respondent and insured with the 6[th] respondent. At the place of accident, the autorickshaw was hit by a car bearing registration No.KBF/1399 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant, a minor aged 7 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,61,000/-, under various heads. 2. Before the Tribunal, respondents 4 and 5 remained absent and they were set ex parte. The 1[st] respondent driver **MACA.No.2536 OF 2008** **3** and the 2[nd] respondent owner of the car filed written statement admitting the accident; however denying negligence alleged against the 1[st] respondent driver. They contended that the accident occurred due to the rash and negligent driving of autorickshaw by the 4[th] respondent. Therefore, the 6[th] respondent insurer, may be held liable to pay compensation. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying negligence alleged against the 1[st] respondent driver. It was contended that the compensation claimed is highly excessive. 4. The 6[th] respondent insurer of the autorickshaw filed written statement admitting the insurance coverage of the said vehicle; however denying negligence alleged against its driver. They contended that since the accident occurred due to the negligence on the part of the 1[st] respondent driver of the car, they are not liable to pay compensation. They contended that the compensation claimed is exorbitant. 5. Before the Tribunal, the claim petition was tried **MACA.No.2536 OF 2008** **4** along with connected matters. Exts.A1 to A22 were marked on the side of the claimants. The respondents have not chosen to adduce any oral or documentary evidence. 6. 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 car 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 insured. Under various heads, the Tribunal awarded a total compensation of Rs.30,000/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 17.08.2002 till realisation, with cost and the 3[rd] respondent insurer was directed to satisfy the award. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 8. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. **MACA.No.2536 OF 2008** **5** 9. 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. 10. 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. 11. 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, **MACA.No.2536 OF 2008** **6** 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. 12. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; |Head|Amount allowed<br>(in rupees)| |---|---| |Compensation for loss of studies|1,000/-| |Cost of medicine and treatment<br>charges|1,000/-| |Transportation charges|1,000/-| |Bystander expenses|1,000/-| |Extra nourishment|500/-| |Damage to clothing|250/-| |Compensation for pain and<br>suffering|10,000/-| |Compensation for permanent<br>disability and loss of earning<br>power|11,250/-| **MACA.No.2536 OF 2008** **7** |Compensation for loss of<br>amenities|4,000/-| |---|---| |**Total**|**30,000/-**| 13. At the time of accident, the appellant was a minor aged 7 years. The document marked as Ext.A8 is the wound certificate and Ext.A12 is the discharge card issued from the Medical College Hospital, Alappuzha. As per the medical records, in the accident, the appellant sustained incised wound on right leg, lacerated wound on right elbow, fracture femur on right leg, multiple injury and abrasion all over the body and lacerated wound on left hip. The appellant had undergone inpatient treatment for a period of 16 days. 14. The appellant did not produce any disability certificate before the Tribunal to prove that the injuries sustained in the accident had resulted in permanent disability. However, on her personal appearance before the Tribunal, it was noticed that she could not walk properly and she could not stand or walk for a long time. Considering those disabilities, the Tribunal took the permanent disability of the appellant as 5%, for the purpose of assessing compensation under various heads. The 3[rd] respondent **MACA.No.2536 OF 2008** **8** insurer has not chosen to challenge the fixation of permanent disability of the appellant as 5% by the Tribunal. 15. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC 396]** , 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 suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High **MACA.No.2536 OF 2008** **9** 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:- |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<br>the 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/-**| 16. Going by the law laid down by the Apex Court in **Master Mallikarjun's case (supra)** , for permanent **MACA.No.2536 OF 2008** **10** 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 Tribunal took the disability of the appellant, on account of the injuries sustained in the accident, as 5%. Therefore, the appellant is entitled for a sum of **Rs.1,00,000/-** as compensation under this head. 17. 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 16 days, a sum of **Rs.8,500/-** can be granted as compensation under this head. 18. In **Mallikarjun's case** , under the head _medical and incidental expenses during the period of hospitalisation_ , **MACA.No.2536 OF 2008** **11** the Apex Court awarded a sum of Rs.25,000/-. In the instant case, the appellant had undergone inpatient treatment for a period of 16 days. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.12,500/-** . 19. 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 Rs.25,000/-. In the instant case, the Tribunal noticed that the appellant could not stand or walk for long time. Therefore, the appellant is entitled for a sum of **Rs.25,000/-** as compensation under this head. 20. In the result, the total compensation in O.P. (MV)No.1252 of 2002 is re-fixed as Rs.1,46,000/- (1,00,000 + 8,500 + 12,500 + 25,000) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,16,000/-** (Rupees One lakh sixteen thousand only) [1,46,000 – 30,000] 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 **MACA.No.2536 OF 2008** **12** 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. 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 shall provide her Bank account details 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** AV/6/2