E.MOAHAMMED SHAHAZ v. Rajasekhar, Selvam Briolers (P) Ltd., United India Insurance Co. Ltd., Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941** ## **MACA.No.1844 OF 2011** **AGAINST THE AWARD IN OP(MV)NO.746/2006 DATED 29-05-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER IN OP(MV):** **E.MOAHAMMED SHAHAZ, AGED 9 YEARS (MINOR) REP.BY HIS MOTHER AND NATURAL GUARDIAN SAJEENA, AGED 35 YEARS, W/O.AJMAL, NAUFAL GARDEN,, MANNANCHERRY, ALAPPUZHA.** **BY ADV. SRI.ABRAHAM P.GEORGE** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** - **1 RAJASEKHAR, S/O.THANKAVELU AGED 37 YEARS, D.N.1/66, SIDHAMALLI P.O.,, KODAMPOOR, PARAPHANAMKODU, THIRUVATHAR DISTRICT.** - **2 MANAGING DIRECTOR, SELVAM BRIOLERS (P) LTD., SELVAM HOUSE, HILL PALACE, TRIPUNITHURA-682301** - **3 THE UNITED INDIA INSURANCE CO.LTD. CHITTOOR ROAD BRANCH, ERNAKULAM NORTH P.O., PIN-682018** - **4 THE ORIENTAL INSURANCE CO.LTD. LAYAM ROAD, KOCHI BRANCH ERNAKULAM NORTH PO, PIN-682018.** - **R4 BY ADV. SRI.P.JACOB MATHEW R3 BY ADV. SRI.P.V.JYOTHI PRASAD R2 BY ADV. SRI.M.V.JOY R2 BY ADV. SRI.C.K.PREM RAJ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1844 OF 2011** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.746 of 2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 17.09.2005, while he was travelling in a car bearing registration No.KL-07/AM-8786, insured with the 4[th] respondent. At the place of accident, the car was hit by a mini lorry bearing registration No.KL-7/AK-7166 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of mini lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,46,000/- under various heads, which was limited to Rs.3,50,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. 3. Respondents 3 and 4, who are the insurers of the vehicles involved in the accident, filed written statements. The 3[rd] **MACA.No.1844 OF 2011** 3 respondent insurer filed written statement admitting insurance coverage of the mini lorry involved in the accident; however, denying the negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition is tried along with connected matter. Exts.A7 to A10 were marked on the side of the claimants. Both sides have not chosen to adduce any oral 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 mini lorry 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.37,500/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with proportionate cost, and the 3[rd] respondent insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded **MACA.No.1844 OF 2011** 4 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. 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. **MACA.No.1844 OF 2011** 5 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 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 of claim|Amount<br>claimed|Amount<br>awarded| |---|---|---| |Transporting to hospital|6,000|--| |Extra nourishment|15,000|2,000| |Damage to clothing|10,000|500| |Medical expenses|100,000|22,000| |Nourishing expenses|80,000|500| |Loss of amenities and enjoyment<br>in life|50,000|5,000| |For shock, pain and sufferings|150,000|5,000| **MACA.No.1844 OF 2011** 6 |Compensation<br>for<br>continuing<br>permanent disability|25,000|--| |---|---|---| |For loss of convenience in life and<br>amenities|60,000|2,000| |For loss of expectation in life|50,000|--| |Limited to|5,46,000/-<br>3,50,000/-|**37,500/-**| 12. The accident occurred on 17.09.2005. At the time of accident, the appellant was a minor aged 3 years. 13. Ext.A8 is the wound certificate and Ext.A9 is the discharge summary. As per Ext.A9, in the accident, the appellant sustained occipital bone fracture, nasal bone fracture and eye lid laceration. He had undergone inpatient treatment for a period of 10 days. Ext.A10 series of medical bills are for a sum of Rs.22,000/-. 14. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 10 days. The accident is of the year 2005. The Tribunal awarded no amount towards transportation to hospital. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.2,000/-** under the head transportation to hospital. **MACA.No.1844 OF 2011** 7 15. Towards bystander expenses the Tribunal awarded no amount. Towards extra nourishment, the Tribunal awarded a sum of Rs.2,000/-. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 10 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.1,500/-** (150 x 10) towards bystander expenses. The compensation under the head extra nourishment cannot be said to be on the lower side, which requires no enhancement in this appeal. 16. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2005, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 17. Towards medical expenses, the Tribunal awarded a sum of Rs.22,000/-, covered by Ext.A10 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. **MACA.No.1844 OF 2011** 8 18. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone at the age of 3 years, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.15,000/-** (20,000 – 5,000). 19. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. Towards loss of convenience in life, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained by the appellant at an age of 3 years, the appellant is granted a sum of Rs.15,000/- under the head loss of amenities and disfiguration. Deducting Rs.7,000/- (5,000 + 2,000) granted under the above heads, the appellant will be entitled for an additional compensation of **Rs.8,000/-** (15,000 – 7,000). In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.26,750/-** (Rupees twenty six thousand seven hundred and fifty only) (2,000 + 1,500 + 250 + 15,000 + 8,000) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till **MACA.No.1844 OF 2011** 9 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 taking note of the law on the point and 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. Since the appellant is a minor, the additional compensation granted in this appeal shall be kept in fixed deposit in any Nationalised Bank till he attains majority. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** JV **JUDGE**