Godson @ Godson Mathew (Minor) v. The Managing Director, Jayalakshmi Electricals Pvt Ltd & The National Insurance Co. Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 MACA NO. 535 OF 2015 ``` ``` AGAINST THE AWARD DATED 29.10.2014 IN O.P.(MV)NO.780 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER:`** ``` GODSON @ GODSON MATHEW(MINOR), AGED 11 YEARS S/O.MATHAI, REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN, FATHER MATHANI, ANGAMALI HOUSE, ASOKA ROAD, KIZHAKKUMMURI DESOM, THORAVU VILLAGE, PUTHUKKAD P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ## **`BY ADV SRI.P.V.BABY`** ## **`RESPONDENTS/RESPONDENTS 1 AND 3:`** - **`1 THE MANAGING DIRECTOR, JAYALAKSHMI ELECTRICALS PVT LTD., NH ROAD, PUTHUCAD - 680 301.`** ``` 2 THE NATIONAL INSURANCE CO.LTD AMBIKA ARCADE, M.G.ROAD, THRISSUR - 680 001. ``` ``` BY ADVS.SRI.D.SREEKUMAR SRI.A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 M.A.C.A.No.535 of 2015 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.780 of 2009 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 16.03.2009, while he was walking through Pudukad-Mupliyam public road, along with his father. At the place of accident, he was hit by a car bearing registration No.KL-8/P-7255 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the time of accident, the claimant was aged 5 years and he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent, a claim petition was filed before the Tribunal claiming a total compensation of Rs.2,32,000/- under various heads, which was limited to Rs.1,50,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver jointly and the 3[rd] respondent insurer separately filed written statements stating that the petition is filed without any _bona fides_ . The insurer disputed the age, injuries suffered, and treatment undergone in the claim petition. The insurer contended that the compensation claimed is highly 3 M.A.C.A.No.535 of 2015 excessive and disproportionate to the nature of injuries. 3. Before the Tribunal, Exts.A1 to A9 were marked and PWs.1 and 2 were examined on the side of the claimant. On the side of the respondents, the insurance policy of the vehicle was marked as Ext.B1. 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 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.1,41,700/-, together with interest at the rate of 7.5% per annum from the date of petition till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. The operative portion of the said award reads thus; “In the result, the petition is allowed awarding compensation of Rs.1,41,700/- (Rupees one lakh forty one thousand and seven hundred only) with interest at the rate of 7.5% from the date of petition till realisation and also proportionate costs. The amount of compensation shall be paid by the 3[rd] respondent by way of demand draft for the court fee amount of Rs.873/- in the name MACT, Irinjalakuda and Rs.50,000/- to the father of the petitioner for the medical expenses met and the balance in the name of the petitioner for deposit in a nationalised bank till he 4 M.A.C.A.No.535 of 2015 ## attains majority.” 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant-claimant is before this Court in this appeal invoking the provisions under Section 173 of the Motor Vehicles Act, 1988. 6. On 05.04.2016, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents by speed post. 7. Heard the learned counsel for the appellant-claimant and also the learned Standing Counsel for the 2[nd] respondentinsurer. 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 5 M.A.C.A.No.535 of 2015 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 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; |Sl.<br>No.|Head of Claim|Amount<br>claimed (Rs.)|Amount<br>allowed<br>(Rs.)|Basis/vital<br>details<br>in<br>a<br>nutshell| |---|---|---|---|---| |01|Loss of earning|12,000||| |02|Transport<br>to<br>hospital|<br>2,000|<br>1,500|| |03|Damage<br>to|<br>1,000|<br>500|| 6 M.A.C.A.No.535 of 2015 ||clothings|||| |---|---|---|---|---| |04|Extra nourishment|2,000|<br>500|| |05|Medical expenses|25,000|<br>43,350|| |06|Bystander’s<br>expenses|5,000|<br>2,850|Rs.150x19<br>days| |07|Pain and suffering|25,000|<br>10,000|| |08|Permanent<br>disability|15,000|<br>63,000|Rs.3,500x12x<br>15x10%| |09|Loss of amenities|25,000|<br>10,000|| |10|Loss<br>of<br>earning<br>power in future|<br>50,000||| |11|Anticipated<br>medical expenses|10,000|<br>10,000|| |12|Disfiguration|25,000||| ||Total|2,32,000/-<br>(Limited to<br>Rs.1,50,000/-|<br> <br> <br>1,41,700/-|<br>Rs.1,41,700/-<br>along<br>with<br>interest at the<br>rate of 7.5%<br>p.a.<br>from<br>25.07.2009 till<br>realisation.| 12. The accident occurred on 16.03.2009. At the time of accident, the appellant was aged 5 years. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge summary. In the accident, he sustained abrasions left elbow, degloving of the dorsum of left foot with skin loss and 2[nd] toe amputed. He was treated in Jubilee Mission Hospital from 16.03.2009 to 31.03.2009. The avulsion of foot was treated with grafting skin and the 2[nd] toe of the right leg was amputed as not viable. He was admitted for plastic surgery and latismus dorsi flap for debulking from 31.03.2014 to 02.04.2014. He was again admitted on 25.04.2014 for that day alone. 7 M.A.C.A.No.535 of 2015 13. The document marked as Ext.A7 is the disability certificate which is one issued mainly taking the amputation of 2[nd] toe (L) as the disability. It is further stated that there was partial ankylosis, limiting the flexion-extension of 3[rd] and 4[th] toes and weakness of soft tissue fibrosis, limitation of dorsi flexion of (L) ankle and ugly scar, for assessing the permanent whole-body disability as 10%. The said certificate is marked through the doctor, who was examined as PW2. The Tribunal accepted the percentage of permanent disability assessed in Ext.P7, for the purpose of awarding compensation under various heads. 14. Towards bystander expenses the Tribunal awarded a sum of Rs.2,850/- (150x19). The accident is of the year 2009 and the appellant had undergone inpatient treatment for 19 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs. 3,800/- (200x19), resulting an additional compensation of **Rs. 950/-** (3,800–2,850). 15. 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 8 M.A.C.A.No.535 of 2015 the Tribunal under the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation **Rs. 15,000/-** (25,000 – 10,000) under this head. 16. Towards permanent disability, the Tribunal awarded a sum of Rs.63,000/-, taking the probable monthly income of the appellant as Rs.3,500/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of disability as 10% as assessed in Ext.A7. Considering the fact that the accident is of the year 2009, the probable monthly income for the purpose of assessing the permanent disability of the appellant is re-fixed as Rs.4,000/-, applying the multiplier of the age group of 15 years, and percentage of disability as 10%, the compensation under the head permanent disability is re-fixed as Rs.72,000/(4,000x12x15x10%), resulting an additional compensation of **Rs.9,000/-** (72,000-63,000). 17. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. In Ext.A7 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. Considering the nature of injuries sustained and 10% permanent disability on account of those injuries, as assessed in Ext.A7 disability, the compensation awarded by the Tribunal under this head is re-fixed as Rs.15,000/, 9 M.A.C.A.No.535 of 2015 resulting an additional compensation of **Rs.5,000/-** (15,000– 10,000). 18. Though a compensation of Rs.25,000/- was claimed under the head disfiguration, the Tribunal did not award any amount towards the same. Considering the nature of injuries sustained by the appellant in the accident and the resultant disfiguration, as borne out from medical records, the appellant is granted a consolidated sum of **Rs.25,000/-** under the head disfiguration and loss of marriage prospects. 19. In the result, the appellant-claimant will be entitled for payment of an additional compensation of **Rs.54,950/-** (Rupees Fifty four thousand nine hundred and fifty only) [950+15,000+ 9,000+5,000+25,000] in this appeal, which will carry interest at the rate of **7.5%** per annum from the date of petition till realization. The 2[nd] 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 10 M.A.C.A.No.535 of 2015 No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The insurer shall also deduct the liability of the appellants/claimants towards additional Court Fee in this appeal, in view of the amendment made to sub-rule (3) of Rule 397 of the Kerala Motor Vehicles Rules, 1989 with effect from 16.01.2015, and the same shall be deposited before the Court. Registry shall calculate the additional Court Fee payable in this appeal and a statement to that effect shall also be enclosed along with the certified copy of the judgment. The appellant to provide his Bank account details (attested copy of the relevant pages 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** AV/24/6