JIBIN RAJ v. MUNEER C.K., Abdulla and United India Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941** ## **MACA.No.891 OF 2016** **AGAINST THE AWARD IN OP(MV)NO.1010/2014 DATED 30-06-2015 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE** ## **APPELLANT/PETITIONER :** **JIBIN RAJ AGED 18 YEARS, S/O.BABURAJ, KATTAYIL THAZAM, VAYALIL VEEDU, ELATHUR (PO), KOZHIKODE.** **BY ADVS. SRI.P.V.KUNHIKRISHNAN SRI.P.V.ANOOP SRI.G.ANEESH** ## **RESPONDENTS/RESPONDENTS :** **1 MUNEER C.K. AGED 36 YEARS, S/O.IBRAYI, CHERUKUNNUMMAL HOUSE,IRINGATH (PO), CHEMBAKA MUKKU,MAPPAYUR, KOZHIKODE, PIN-673 523.** **2 ABDULLA AGED 66 YEARS, S/O.AHAMED, THAZHE MEPPAL HOUSE,MAPPAYUR (PO), KOZHIKODE, PIN-673 524.** **3 UNITED INDIA INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, WHITE LINE BUILDING,KALLAL ROAD, KOZHIKODE, PIN-673 001.** **R2 BY ADV. SMT.T.J.SEEMA R3 BY ADV. SRI.P.MURALEEDHARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.891 OF 2016** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1010 of 2014 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, 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 03.03.2012, while he was pedalling a bicycle. At the place of accident, he was knocked down by a car bearing registration No.KL-56/B-5784, 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 car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,02,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying the negligence alleged against **MACA.No.891 OF 2016** **3** its driver. The insurer contended that the compensation claimed is highly excessive. The insurer contended further that the 1[st] respondent was not having a valid driving licence and badge at the time of accident and therefore, there is violation of the conditions of policy. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. Ext.B1 copy of First Information statement and FIR and Ext.B2 copy of insurance policy were marked on the side of the 3[rd] respondent insurer. 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 offending car by its driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. However, on a finding that the 1[st] respondent driver was not holding a valid driving licence and badge, who was charge sheeted by police for offence under sub-section (1) of Section 3 read with 181 of the Motor Vehicles Act, the insurer was granted recovery right to recover the amount of compensation paid to the **MACA.No.891 OF 2016** **4** appellant/claimant by proceeding against the 2[nd] respondent owner. Under various heads, the Tribunal awarded a total compensation of Rs.23,000/-, together with interest at the rate of 9% per annum from the date of petition till date of deposit, with proportionate cost, 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, the learned counsel for the 2[nd] respondent owner and also the learned Standing Counsel for the 3[rd] respondent insurer. Despite service of notice, none appears for the 1[st] respondent driver. 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 **MACA.No.891 OF 2016** **5** 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. 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.891 OF 2016** **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; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital<br>details<br>in<br>a<br>nutshell| |---|---|---|---|---| |1|Transport to hospital|2,000/-|2,000/-|| |2|Treatment expenses|1,50,000/-|15,000/-|| |3|Pain and sufferings|1,00,000/-|15,000/-|| |4|Loss of amenities|50,000/-|5,000/-|| ||Total||23,000/-|| 12. The accident occurred on 03.03.2012. At the time of accident, the appellant was a student aged 17 years. In the accident, the appellant sustained multiple abrasion on left side of the face. X-ray showed fracture of radius left. He had not undergone inpatient treatment. No documents were placed before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability. The documents marked as Ext.A3 is the wound certificate and Exts.A6 and A7 are the medical bills for a sum of Rs.1,870/-. 13. Towards transport to hospital, the Tribunal **MACA.No.891 OF 2016** **7** awarded a sum of Rs.2,000/-. Considering the fact that the appellant had undergone only outpatient treatment, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 14. Towards damage to clothing and articles, no compensation has been awarded by the Tribunal. Considering the fact that the accident is of the year 2012, this Court deem it appropriate to grant a sum of **Rs.1,250/-** under this head. 15. Towards treatment expenses, the Tribunal awarded a sum of Rs.1,000/-, as against the total sum of Rs.872/covered by Exts.A6 and A7 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. 16. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the **MACA.No.891 OF 2016** **8** compensation awarded by the Tribunal under this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 17. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. No documents were placed before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability. Considering the nature of injuries sustained by the appellant, while he was a minor aged 17 years, the compensation awarded by the Tribunal under this head is re-fixed as Rs.7,000/-, resulting an additional compensation of **Rs.2,000/-** (7,000 – 5,000). 18. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.3,250/-** (Rupees Three thousand two hundred and fifty only) [1,250 + 2,000] 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 **MACA.No.891 OF 2016** **9** deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The 3[rd] respondent insurer will be entitled to recover the additional compensation granted in this appeal, together with interest, by proceeding against the 2[nd] respondent owner. 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 shall provide his bank 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 certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/18/1