C. Raman v Bobby M. Ninan and National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941** ## **MACA.No.2280 OF 2008** **AGAINST THE AWARD IN OPMV 114/2003 DATED 09-04-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/CLAIMANT :** **C.RAMAN** **S/O KORAN, CHAKKUNGALTHODIYIL HOUSE, ELAMKUR POST, MALAPPURAM.** ## **BY ADV. SRI.VINOD VALLIKAPPAN** ## **RESPONDENTS/RESPONDENTS :** - **1 BOBBY M.NINAN, S/O.NIANAN KUTTISSERIL HOUSE, ELAMAKKARA POST, KOCHI-26.** **2 M/S.NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE, AJAY VIHAR, 1ST FLOOR, M.C.ROAD, ERNAKULAM.** **R1 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2280 OF 2008** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.114 of 2003 on the file of the Motor Accidents Claims Tribunal, Manjeri, which is a claim 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 05.02.2000, while he was walking along the side of a public road. At the place of accident, the appellant/claimant was hit by a car bearing registration No.KL-7/W-9295 owned and driven by the 1[st] respondent and insured with the 2[nd] 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 car by the 1[st] respondent, claim petition was filed before the Tribunal, claiming a total compensation of Rs.2,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver remained absent and he was set ex-parte. The 2[nd] respondent insurer filed written statement, denying the policy coverage. The 2[nd] respondent later admitted the **MACA.No.2280 OF 2008** **3** insurance coverage of the vehicle; but denied the liability. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 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 car by the 1[st] respondent owner-cum-driver. Since the insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.26,177/-, which was rounded off to Rs.26,200/- together with interest at the rate of 7% per annum from the date of petition, till realisation, with a cost of Rs.500/- 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 the learned Standing Counsel for the 2[nd] **MACA.No.2280 OF 2008** **4** respondent insurer. Since insurance coverage of the offending vehicle is admitted by the 2[nd] respondent insurer, service of notice on the 1[st] respondent owner-cum-driver was 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 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 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. **MACA.No.2280 OF 2008** **5** 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; Transport to the hospital : Rs.1,000.00 Extra nourishment and : Rs.1,400.00 bystanders expenses For reviews (1 time) : Rs.100.00 Damage to the clothing : Rs.250.00 Pain and suffering : Rs.12,000.00 Medical bills : Rs.2,727.00 For disfigurement : Rs.1,000.00 1/3[rd] salary of 88 days : Rs.7,700.00 **MACA.No.2280 OF 2008** **6** commuted leave Total : Rs.26,177.00 Rounded to : Rs.26,200.00 11. The accident occurred on 05.02.2000. At the time of accident, the appellant was aged 51 years. He claimed a monthly income of Rs.7,876/- as Secretary of Karuvarakundu Grama Panchayat. He produced Ext.A4 pay certificate to prove the same. 12. Ext.A2 wound certificate would show that the appellant had complained pain left thigh and left lip. He sustained lacerated wound over vertex, upper lip, abrasion below right eye and cerebral concussion on left knee. X-ray showed fracture on citabulam (L) and inferior pubic rami (L). He was hospitalsed for 14 days. 13. As per Ext.A5 proceedings of the Assistant Director of Panchayats, Malappuram, the appellant availed 88 days commuted leave after converting 176 half pay leave for the purpose of treatment in connection with the accident. The Tribunal found that if the accident had not occurred, the appellant could have taken that commuted leave for some other purposes. Therefore, it was ordered that 1/3[rd] of the **MACA.No.2280 OF 2008** **7** salary of total days of commuted leave can be granted to the appellant. Therefore, the Tribunal awarded a sum of Rs.7,700/- towards 1/3[rd] of the salary for 88 days commuted leave. Considering the fact that the appellant availed 88 days of commuted leave by converting 176 half pay leave, this Court deem it just and proper to re-fix the compensation under the head loss of salary, as Rs.11,550/-, i.e. 1/2 of the salary of total days of commuted leave, resulting an additional compensation of **Rs.3,850/-** (11,550-7,700). 14. As already noticed, the accident is of the year 2000. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation of Rs.1,000/- awarded by the Tribunal towards transportation to hospital represents just and reasonable compensation, which requires no enhancement in this appeal. 15. Towards extra nourishment and bystanders expenses, the Tribunal awarded a consolidated amount of Rs.1,400/- at the rate of Rs.100/- for 14 days. Since the **MACA.No.2280 OF 2008** **8** accident is of the year 2000, the appellant can be awarded a sum of Rs.1,400/- (100x14) under the head extra nourishment and a further sum of Rs.2,100/- (150x14) under the head bystander expenses. In the result, compensation under the head extra nourishment and bystander expenses is re-fixed as Rs.3,500/(1,400+2,100), resulting an additional compensation of **Rs.2,100/-** (3,500-1,400) under these heads. 16. Towards medical expenses, the Tribunal awarded an amount of Rs.2,727/-, which is covered by Ext.A6 series of medical bills. In the absence of any further materials, the compensation awarded under this head warrants no enhancement in this appeal. 17. Towards pain and sufferings, the Tribunal awarded a sum of Rs.12,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, this Court deem it appropriate to re-fix the compensation under this head as Rs.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000-12,000). **MACA.No.2280 OF 2008** **9** 18. Towards disfigurement, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained, as borne out from Ext.A2 wound certificate, this Court deem it appropriate to re-fix the compensation under this head as Rs.5,000/-, resulting an additional compensation of **Rs.4,000/-** (5,000-1,000). 19. No compensation has been awarded by the Tribunal under the head loss of amenities. Considering the nature of injuries sustained, as borne out from Ext.A2 certificate, this Court deem it appropriate to grant an amount of **Rs.5,000/-** under the head loss of amenities, which would represent just and reasonable compensation under that head. In the result, the appellant will be entitled for a total additional compensation of **Rs.17,950/-** (Rupees Seventeen thousand nine hundred and fifty only) [3,850+2,100+3,000+4,000+5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent/insurer shall satisfy the additional compensation granted in this **MACA.No.2280 OF 2008** **10** 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/16/10