Jayakumary v. Prakas N.K. and N.K. Dinesh & United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** ## **MACA.No.736 OF 2007** **AGAINST THE AWARD IN OP(MV) 423/2003 DATED 08.12.2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER :** **JAYAKUMARY, W/O.GIREESAN, WPC 948, POLICE QUARTERS ROOM NO.A1, MANANTHAVADY, WAYANAD DISTRICT.** **BY ADV. SRI.WILSON URMESE** ## **RESPONDENTS/RESPONDENTS :** - **1 PRAKASAN N.K., S/O.NARAYANAN, DEEPA SADANAM, P.P.ANANTHAN ROAD, THIRUVANGAD POST, THALASSERY.** - **2 N.K.DINESH, DEEPA SADANAM, P.P.ANANTHAN ROAD, THIRUVANGAD POST, THALASSERY.** - **3 THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., KANNUR BRANCH.** **R3 BY ADV. SMT.R.REMA** - **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON** - **04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.736 OF 2007** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.423 of 2003 on the file of the Motor Accidents Claims Tribunal, Wayanad, which is 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 19.06.2003, while he was walking along the side of a public road. At the place of accident, an autorikshaw bearing registration No.KL-13/J-2129 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent hit her. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorikshaw by the 1[st] respondent, driver claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set exparte. The 3[rd] respondent/insurer filed written statement, which was followed by additional written statement, admitting the insurance coverage of the vehicle involved in the accident; however, denying the negligence alleged **MACA.No.736 OF 2007** 3 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. 3. Before the Tribunal, Exts.A1 to A8 series were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 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 offending vehicle by the 1[st] respondent driver. Since the insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.62,730/-, and the insurer was directed to satisfy the award, with interest at the rate of 6% per annum from the date of petition till date of deposit, together with proportionate cost. 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 2[nd] **MACA.No.736 OF 2007** 4 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 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 **MACA.No.736 OF 2007** 5 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. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.No.|Compensation claimed under various<br>heads.|Amount allowed| |---|---|---| |1|Transport to hospital|500| |2|Extra nourishment|300| |3|Damage to clothing|200| |4|Medical expenses|18328.96| |5|Pain and suffering|5000| |6|Disabilities|38400| ||TOTAL|62728.96<br>Rounded to<br>62730| 11. The accident occurred on 19.6.2003. Going by the averments in the claim petition, at the time of accident, the appellant was a Police Constable at Kalpetta Police Station, earning a monthly income of Rs.6.700/-. No materials were placed on **MACA.No.736 OF 2007** 6 record to prove her monthly income. The appellant was examined as PW1. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads. 12. Ext.A3 is the wound certificate issued from Leo Hospital, Kalpetta, which shows that the appellant sustained open fracture left ankle and abrasion on elbow and foot. In Ext.A5 disability certificate issued by Dr.P.C.Muraleedharan of the Medical College Hospital, Kozhikode, 12% permanent partial disability was assessed. The appellant has not taken steps to obtain disability certificate from the Medical Board or to examine the doctor who had issued Ext.A5 disability certificate. In the absence of any reliable materials, the Tribunal took the percentage of disability as 4%. Considering the age group of the appellant, the Tribunal adopted the multiplier of 16. The appellant had undergone inpatient treatment for a period of 14 days. Ext.A8 series of medical bills are for a sum of Rs.18326.96/-. 13. Learned counsel for the appellant would submit that the Tribunal went wrong in not awarding any compensation under the head 'loss of earning' and fixing only a notional monthly income of **MACA.No.736 OF 2007** 7 Rs.5,000/-, instead of Rs.6,700/-, as claimed in the claim petition. The learned counsel would also submit that the Tribunal went wrong in scaling down the percentage of disability assessed in Ext.A5 disability certificate from 12% to 4%. The learned counsel would also submit that the compensation awarded by the Tribunal under various heads are on a lower side, which requires enhancement, in this appeal. 14. Per contra, the learned Standing Counsel for the 3[rd] respondent insurer would submit that no materials were placed before the Tribunal to prove the monthly income of the appellant. Ext.A5 disability certificate was also not proved. The appellant has not produced any materials to show that on account of the injuries sustained in the motor accident, she had to avail leave, resulting consequential monetary loss. 15. Having considered the submissions by the learned counsel on both sides, this Court finds that the appellant, who was working as a Police Constable in Kalpetta Police Station, has not placed on record any materials to prove her monthly income, or any monetary loss sustained by her on account of the injuries sustained in the motor accident. The disability that had arisen out **MACA.No.736 OF 2007** 8 of the injuries sustained in the motor accident has not resulted in loss of earning, as she was earning the very same salary as Police Constable, after the accident. During the course of arguments, on a specific query made by this Court, the learned counsel for the appellant would submit that the appellant is presently working as Assistant Sub Inspector of Police. 16. In Ext.A5 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 4%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. The Tribunal awarded a sum of Rs.38,400/- under the head 'disability compensation' fixing the notional monthly income as Rs.5,000/-, applying a multiplier of 16 and adopting a permanent disability of 4%, as certified in Ext.A5 disability certificate. The multiplier applied by the Tribunal is with reference to the age group of the appellant, as on the date of accident. When the disability that had arisen on account of the injuries sustained in the motor accident has not resulted in any reduction of monthly salary, the proper course that could have been adopted by the Tribunal is to **MACA.No.736 OF 2007** 9 fix a notional income of the appellant after retirement and assess disability compensation, taking the multiplier of 9 applicable to the age group 56-60. If Rs.5,000/- fixed by the Tribunal is taken as the notional monthly income of the appellant after retirement, the compensation under the head 'disability' will have to be scaled down to Rs.21,600/- (5000x12x9x4/100), resulting an excess payment of **Rs.16,800/-** (38,400-21,600). 17. Though compensation was claimed under the head loss of earning, no compensation was awarded under that head, as no materials were placed before the Tribunal to prove any loss of earning on account of the injuries sustained by the appellant in the motor accident. 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2003, compensation under this head can be fixed as Rs.1,500/-, resulting an additional compensation of Rs. **1,000/-** (1,500-500). 19. Towards extra nourishment, the Tribunal awarded a further sum of Rs.300/-. Considering the fact that the appellant had undergone inpatient treatment for 14 days, the compensation **MACA.No.736 OF 2007** 10 awarded by the Tribunal under this head is refixed as Rs.1,400/(100x14), resulting an additional compensation of **Rs.1,100/-** (1,400-300). 20. Towards bystander's expense, no amount has been awarded by the Tribunal. Considering the fact that the appellant had undergone inpatient treatment a period of 14 days, this Court deem it appropriate to grant a sum of **Rs.2,100/-** (150x14) as compensation under this head. 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.200/-. 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.550/-** (750-200). 22. 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, the compensation under this head is refixed as Rs.10,000/-, resulting an additional compensation of **Rs.5,000/-** (10,000-5,000) **.** 23. Towards loss of amenities, no compensation has been granted. Considering the nature of injuries sustained and also the **MACA.No.736 OF 2007** 11 disability that had arisen out of those injuries, as shown in Ext.A5 disability certificate, which has been accepted by the Tribunal at 4%, the appellant is awarded a sum of **Rs.10,000/-** under this head. In the result, the appellant will be entitled for payment of an additional compensation of Rs.2,950/- (Rupees Two Thousand Nine Hundred and Fifty only [(1,000 + 1,100 + 2,100 + 550 + 5,000 + 10,000)-16,800]. The 3[rd] respondent insurer shall pay the said amount together with interest @ 8% per annum from the date of petition till realisation within three weeks 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. This appeal is disposed of as above. No order as to costs. Sd/- rkj **ANIL K. NARENDRAN, JUDGE**