Gayathri (Minor) by Guardian and Next Friend Father Ragahavan v. United India Insurance Co. Ltd.

# **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.98 OF 2010** **AGAINST THE AWARD IN OPMV 278/2003 DATED 30-01-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONERS:** **GAYATHRI (MINOR) AGED 7, DATE OF BIRTH 20/11/95,REPD.BY GUARDIAN AND NEXT FRIEND FATHER, RAGHAVAN, S/O.APPU, AGED 39, THAZHATHU VAYAL HOUSE, KUMBLERI POST, KRISHNAGIRI VILLAGE, SULTHAN BATHERY TALUK.** **BY ADV. SMT.M.R.JAYALATHA** ## **RESPONDENT/RESPONDENT NO.3:** **UNITED INDIA INSURANCE CO.LTD THE BRANCH MANAGER, RAWTHER BUILDING, NEAR PLANGODE ROAD, JUNCTION, MAIN ROAD, KALPETTA.** **R1 BY ADV. SRI.S.ARUN RAJ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.98 OF 2010** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.278 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kalpetta, 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 10.03.2003, while she was travelling in an autorikshaw bearing registration No.KL12/A-7091. At the place of accident, the autorikshaw was hit by a tractor bearing registration No.KL-12/2423 driven by the 1[st] respondent and owned by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, the appellant/claimant, who was then a minor aged 7 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of tractor by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent filed written statement admitting the accident; however, denying negligence alleged against him. He contended that the accident occurred due to the rash and negligent driving of the autorikshaw by its driver. **MACA.No.98 OF 2010** 3 The 2[nd] respondent owner remained absent and he was set exparte. The respondent insurer filed written statement, which was followed by an additional written statement, admitting insurance coverage of the tractor involved in the accident. According to the insurer, the driver of the tractor was not holding a valid driving licence, who was charge-sheeted by the Police for the offence punishable under sub-section (1) Section 3 read with Section 181 of the Motor Vehicles Act. The insurer contended that the accident occurred due to the rash and negligent driving of autorikshaw by its driver. The insurer also contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A4 were marked on the side of the appellant/claimant and the appellant was examined as PW1. On the side of the respondents, a copy of the driving licence of the 1[st] respondent driver was marked as Ext.B1 and the document marked as Ext.B2 is the charge sheet. The disability certificate issued by the Medical Board was marked as Ext.C1 and the vehicle reports and treatment certificates were marked as Exts.X1 to X3. 4. After considering the pleadings and materials on record, **MACA.No.98 OF 2010** 4 the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of tractor by the 1[st] respondent 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.42,300/-, together with interest at the rate of 6% per annum from the date of petition till payment, with proportionate cost 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 respondent insurer. 7. 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. 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 **MACA.No.98 OF 2010** 5 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. 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. **MACA.No.98 OF 2010** 6 ## 10. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus: |Compensation for disability|27,000| |---|---| |Transportation to Hospital|1,500| |Extra nourishment|1,000| |Damage to clothing and articles|200| |Bystander's expense|700| |Medical expense|4,900| |Pain and suffering|7,000| |Total|**42,300**| 11. The accident occurred on 10.03.2003. At the time of accident, the appellant was a minor, aged 7 years. The document marked as Ext.A3 is the wound certificate. As per medical records, in the accident, the appellant sustained injuries to left index finger with total amputation at proximal phalanx level, advised stamp closure. She had undergone inpatient treatment for a period of 15 days. Ext.A4 series of medical bills are for a sum of RS.4,809/-. 12. The document marked as Ext.C1 is the disability certificate, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 13. In **Master Mallikarjun v. Divisional Manager,** **MACA.No.98 OF 2010** 7 ## **National Insurance Company Limited [(2014) 14 SCC 396]** , a decision relied on by the learned counsel for the appellant, 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 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 **MACA.No.98 OF 2010** 8 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:- |compensation as follows:-|| |---|---| |Head|Compensation<br>amount| |Pain and suffering already undergone<br>and to be suffered in future, mental<br>and<br>physical<br>shock,<br>hardship,<br>inconvenience and discomforts and loss<br>of amenities in life on account of<br>permanent disability.|Rs.3,00,000/<br>-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the<br>period of hospitalisation.|Rs.25,000/<br>-| |Medical and incidental expenses during<br>the period of hospitalisation for 58<br>days.|Rs.25,000/<br>-| |Future medical expenses for correction<br>of the malunion of fracture and<br>incidental expenses for such treatment.|Rs.25,000/<br>-| |**TOTAL:-**|**Rs.3,75,000/**<br>**-**| 14. Going by the law laid down by the Apex Court in **Master Mallikarjun's case (supra)** , for permanent disability up **MACA.No.98 OF 2010** 9 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 permanent disability of the appellant assessed in Ext.C1 disability certificate is 10%. Therefore, the appellant is entitled for a sum of **Rs.1,00,000/-** as compensation under this head. 15. 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 15 days, a sum of **Rs.12,500/-** is granted as compensation under this head. 16. In **Mallikarjun's case** , under the head _medical and incidental expenses during the period of hospitalisation_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, Ext.A4 series of medical bills are for a sum of Rs.4,809/-. Therefore, **MACA.No.98 OF 2010** 10 towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.12,500/-** . 17. 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 pleading and materials on record would not indicate malunion of fracture or requirement for future treatment. Therefore, the appellant is not entitled for any amount under this head. In the result, the total compensation in O.P.(MV)No.278 of 2003 is re-fixed as Rs.1,25,000/- [1,00,000 + 12,500 + 12,500] in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.82,700/-** (Rupees eighty two thousand seven hundred only) [1,25,000 - 42,300] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation, excluding the period of delay of 248 days in filing this appeal, which was condoned by the order dated 27.08.2019, subject to the condition that the claimant will not be entitled to claim interest for the enhanced compensation, if any, granted in the appeal for the period of delay. **MACA.No.98 OF 2010** 11 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. 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 (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) 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** JV