Dr. Jagath Lal S/o P.A. Gangadhar Nambiar v National Insurance Co. Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** ## **MACA.No.865 OF 2008** **AGAINST THE AWARD IN OPMV 1109/2002 DATED 23-11-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/PETITIONER:** **DR.JAGATH LAL S/O.P.A.GANGADHARAN NAMBIAR, AGED 33 YEARS, "JAGATH VIHAR", VENGERI KOZHIKODE.** **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENT/3RD RESPONDENT:** **NATIONAL INSURANCE CO.LTD BRANCH OFFICE KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI, MALAPPURAM DISTRICT.** **R1 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.865 OF 2008** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1109 of 2002 on the file of the Motor Accidents Claims Tribunal, Manjeri, 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 02.02.2001, while he was travelling in a car bearing registration No.GJ-18/T-6161, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent, from Ahammedabad Airport to Gandhidam, Gujarat. When the vehicle reached Kanmare – Gagodar, the 1[st] respondent driver lost control, while overtaking a tempo van proceeding ahead and hit on the rear side of that vehicle. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent/insurer filed written statement **MACA.No.865 OF 2008** 3 admitting insurance coverage of the car involved in the accident; however, denying the negligence alleged against the 1[st] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant. The appellant was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 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 car by the 1[st] respondent driver. Since insurance coverage of the offending 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.21,750/-, together with interest at the rate of 7% per annum from the date of petition till realisation, with a cost of Rs.500/-. The insurer was directed to satisfy the award within one month from the date of award. 6. Dissatisfied with the quantum of compensation **MACA.No.865 OF 2008** 4 awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the respondent/insurer. 8. 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. 9. 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. 10. In **National Insurance Company Ltd. v. Pranay** **MACA.No.865 OF 2008** 5 **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. 11. In the instant case, the compensation awarded by the ## Tribunal under varous heads reads thus: |Transport to hospital||Rs.|500.00| |---|---|---|---| |Extra<br>nourishment|and|Rs.|300.00| |bystander's expenses|||| |Damage to clothing||Rs.|250.00| |For review (2 times)||Rs.|200.00| |Pain and suffering||Rs.|10,000.00| |Medical Bills||Rs.|500.00| |For loss of two months|stipend|Rs.|10,000.00| |@ Rs.5,000/-|||| |||**Rs.**|**21,750.00**| 12. The accident occurred on 02.02.2001. At the time of accident, the appellant was aged 27 years. He claimed a monthly income of Rs.5,000/-. The Tribunal accepted the above claim **MACA.No.865 OF 2008** 6 made by the appellant and fixed the monthly income as Rs.5,000/-. 13. The document marked as Ext.A3 is the wound certificate; Ext.A4 is the discharge card; and Ext.A5 is the hospital admission/specialist opinion. The injuries noted in Ext.A3 wound certificate are as follows: “Pain at the back, enegesmi discomfort, pain right upper thorax, chest pain vital region stock tenderness over T12 L1 spine tenderness over 3[rd] rib cut aspect, abrasion over right knee.” The appellant had undergone inpatient treatment for a period of 3 days. 14. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.5,000/- per month for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 3 months. Therefore, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (5,000 x 3), resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). **MACA.No.865 OF 2008** 7 15. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 3 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 16. Towards extra nourishment and bystander expenses the Tribunal awarded a sum of Rs.300/-. The accident is of the year 2001 and the appellant had undergone inpatient treatment for 3 days. The compensation under the head bystander expenses is re-fixed as Rs.450/- (150 x 3) and that under the head extra nourishment is re-fixed as Rs.300/- (100 x 3), resulting an additional compensation of **Rs.450/-** (750 - 300). 17. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2001, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). **MACA.No.865 OF 2008** 8 18. Towards medical expenses, the Tribunal awarded a sum of Rs.500/-. In the absence of any medical bills, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. For review the Tribunal awarded a sum of Rs.200/-. Since there was review for two times, the compensation awarded by the Tribunal is re-fixed as Rs.1,000/- (500 x 2), resulting an additional compensation of **Rs.800/-** (1,000 – 200). 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.7,250/-** (Rupees seven thousand two hundred and fifty only) [5,000 + 500 + 450 + 500 + 800] in this appeal, which will carry interest at the rate of **8%** per annum **MACA.No.865 OF 2008** 9 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 Fee and Legal Benefit Fund. The disbursement of the amount to the appellant shall be in terms of 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** JV