DR. K. SUCHITHRA v. SHAMSUDDIN, SHIYAS C.A., NATIONAL INSURANCE COMPANY LTD., AND M.A. KABEER

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** ## **MACA.No.2963 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.789/2004 DATED 23-03-2009 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER IN O.P(MV)NO.789/2004 :** **DR.K.SUCHITHRA D/O.K.SUKUMARAN, SANTHI HELIPPAD, KURAKKANNI, VARKALA. BY ADVS. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY** ## **RESPONDENTS/RESPONDENTS IN O.P(MV)NO.789/2004:** |**1**|**SHAMSUDDIN , MULANTHIKKAPPARAMBIL**| |---|---| ||**VAZHAKKULAM, PERUMBAVOOR.**| |**2**|**SHIYAS.C.A S/O.ALIYAR**| ||**CHELAPPILLY HOUSE, MUDIKKAL, VAZHAKKULAM.**| |**3**|**NATIONAL INSURANCE COMPANY LTD.**| ||**ALAPPUZHA.**| |**4**|**M.A.KABEER, MADATHIL HOUSE**| ||**NORTH EZHIPURAM, MANNAMPALLY,**| ||**PERUMBAVOOR.**| **R3 BY SRI.PMM.NAJEEB KHAN, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2963 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.789 of 2004 on the file of the Additional 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 27.10.2003, while she was travelling in an Ambassador Car bearing registration No.KL-O/8257. At the place of accident, the car was hit by a goods vehicle bearing registration No.KL-5/C-4861, originally owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. As on the date of accident, the 4[th] respondent was the owner of the goods vehicle. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of goods vehicle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,75,000/- under various heads. 2. Before the Tribunal, respondents 1, 2 and 4 did not appear. **MACA.No.2963 OF 2009** **3** 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the goods vehicle involved in the accident; however, denying negligence alleged against the driver of that vehicle. The insurer contended that the accident occurred due to the rash and negligent driving of the Ambassador Car by its driver, the husband of the claimant, who died in the same accident. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with connected matters arising out of the very same accident. Exts.A1 to A34 were marked on the side of the claimants. 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 goods vehicle 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 **MACA.No.2963 OF 2009** **4** Tribunal awarded a total compensation of Rs.30,750/-, together with interest at the rate of 6% per annum from the date of petition till date of deposit, and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation 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 3[rd] respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 4[th] respondent is dispensed with. 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 **MACA.No.2963 OF 2009** **5** 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 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 **MACA.No.2963 OF 2009** **6** 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 various heads reads thus; |Head|Amount allowed<br>(in Rupees)| |---|---| |Transportation|500/-| |Damage to clothing|250/-| |Extra nourishment|500/-| |Bystanders expenses|500/-| |Treatment expenses|1,500/-| |Loss of services|1,500/-| |Pain and suffering|6,000/-| |Loss of amenities in life and<br>enjoyment|6,000/-| |For loss of 7 teeth<br>(at the rate of Rs.2,000/- per teeth)|14,000/-| |**Total amount**|**30,750/-**| 12. The accident occurred on 27.10.2003. At the time of accident, the appellant was aged 46 years. The appellant was an Ophthalmologist by profession. However, no materials were produced to prove loss of income. Therefore, the Tribunal awarded no compensation under the head loss of earnings. 13. The document marked as Ext.A29 is the wound **MACA.No.2963 OF 2009** **7** certificate, as per which, the appellant sustained multiple lacerated wound over the right side and abrasion on the forehead. As per Ext.A30 medical certificate, the appellant sustained lacerated injury on the right eye lower lid. She mainly sustained facial injuries. She lost 7 teeth on account of fracture. Ext.A31 is the certificate issued by a Dentist to show the dental treatment she had undergone following the accident. As per Ext.A31, she is having difficulty in speaking and her facial expressions are also slightly affected. However, no disability certificate was placed on record. 14. The accident is of the year 2003. 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.2,000/-, resulting an additional compensation of **Rs.1,500/-** (2,000 - 500). 15. Towards bystander expenses the Tribunal awarded a sum of Rs.500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The **MACA.No.2963 OF 2009** **8** accident is of the year 2003. 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 the head bystander's expenses represents just and reasonable compensation, which requires no enhancement in this appeal. However, considering the facial injuries sustained by the appellant, the compensation under the head extra nourishment is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500). 16. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2003, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 17. Towards treatment expenses, the Tribunal awarded a sum of Rs.1,500/-. In the absence of any reliable materials to prove treatment expenses, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this **MACA.No.2963 OF 2009** **9** appeal. 18. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.6,000/-. 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 is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.1,500/-** (7,500 – 6,000) under this head. 19. Towards loss of amenities the Tribunal awarded a sum of Rs.6,000/-. In the absence of any disability certificate, considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.1,500/-** (7,500 – 6,000). 20. Towards compensation for loss of 7 teeth, the Tribunal awarded a sum of Rs.14,000/-. Considering Ext.A31 certificate issued by a Dentist regarding the treatment the appellant had undergone, the compensation under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.6,000/-** (20,000 – 14,000). **MACA.No.2963 OF 2009** **10** 21. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.12,000/-** (Rupees Twelve thousand only) [1,500 + 1,000 + 500 + 1,500 + 1,500 + 6,000] 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 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 additional compensation to the appellant/claimant shall be made 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. The appellant to 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. **MACA.No.2963 OF 2009** **11** This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/15/1