Jins Joseph v. Rajappan @ Rayappan and Oriental Insurance Co. Ltd. (MACA No.463 of 2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **MACA.No.463 OF 2008** **AGAINST THE AWARD IN OP(MV) 522/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/PETITIONER:** **JINS JOSEPH AGED 20 YEARS S/O.JOSEPH,CHITTAPPANATTU HOUSE, PERUVANTHANAM KARA AND VILLAGE, PERUVANTHANAM P.O.(NOW MAJOR)** **BY ADVS. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI** ## **RESPONDENTS/RESPONDENTS:** **1 RAJAPPAN @ RAYAPPAN S/O.JANAPRAKASHAM, 2ND DIVISION, ESTATE LINE, MOONGALAR ESTATE, VANDIPERIYAR, PERIYAR VILLAGE.** **2 THE ORIENTAL INSURANCE CO.LTD REPRESENTED BY ITS DIVISIONAL MANAGER, MUVATTUPUZHA.** **R2 BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.463 of 2008 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.522 of 2003 on the file of the Motor Accidents Claims Tribunal, Thodupuzha, 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 11.12.2002, while he was walking along the side of a public road. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-6/B-2964 owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant, who was then a minor aged 15 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cum-rider filed written statement admitting the accident; however, denying negligence alleged against him. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying negligence alleged against the 1[st] respondent rider. The insurer contended that the MACA No.463 of 2008 3 ## compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant and PWs 1 and 2 were examined. On the side of the respondents, Exts.B1 to B4 were marked and DWs1 and 2 were examined. 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 riding of motorcycle by the 1[st] respondent rider. 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.55,824/- (which was rounded off to Rs.56,000/-), together with interest at the rate of 6% per annum from 15.07.2003, the date of petition till realisation and the 2[nd] respondent 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 2[nd] respondent insurer. MACA No.463 of 2008 4 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 equitability on acceptable legal standard because such MACA No.463 of 2008 5 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.<br>No.|Compensation for|Rupees| |---|---|---| |1|Transportation expenses|4,000| |2|Extra nourishment|2,000| |3|Bystander expenses|2,000| |4|Treatment expenses|17,074| |5|Pain and suffering|15,000| |6|Disability (15,000 x 15 x 7/100)|15,750| ||TOTAL|**55,824/-**| 11. The accident occurred on 11.12.2002. At the time of accident, the appellant was a 10[th] standard student, aged 15 years. The document marked as Ext.A4 is the accident register cum wound certificate. As per medical records, in the accident, the appellant sustained swelling and deformity of right thigh and minor skin abrasion over right leg at right ankle. In X-ray, fracture shaft of femur bone of right thigh at the junction of middle and distal 1/3 was confirmed. He had undergone inpatient MACA No.463 of 2008 6 treatment for a period of 12 days. Ext.A7 series of medical bills are for a sum of Rs.17,074/-. 12. The document marked as Ext.A12 is the disability certificate issued by the Medical Board at Taluk Head Quarters Hospital, Thodpuzha, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. The Tribunal took the percentage of disability as 7%, stating that Ext.A12 was marked subject to proof. Since Ext.A12 disability certificate is one issued by the Medical Board, and no vitiating circumstances are pointed out in the assessment of disability by the Medical Board, the Tribunal went wrong in scaling down the percentage of permanent disability to 7%. Considering the nature of injuries sustained and the disabilities noted in Ext.A12, i.e., restriction of movement of thigh, this Court deem it appropriate to take the percentage of permanent disability as 15%, as assessed by the Medical Board in Ext.A12, for the purpose of assessing compensation under various heads. 12. In **Master Mallikarjun v. Divisional Manager, 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 MACA No.463 of 2008 7 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 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 MACA No.463 of 2008 8 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 and to<br>be suffered in future, mental and physical<br>shock,<br>hardship,<br>inconvenience<br>and<br>discomforts and loss of amenities in life on<br>account of permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the period of<br>hospitalisation.|Rs.25,000/-| |Medical and incidental expenses during the<br>period of hospitalisation for 58 days.|Rs.25,000/-| |Future medical expenses for correction of the<br>malunion of fracture and incidental expenses<br>for such treatment.|Rs.25,000/-| |**TOTAL:-**|**Rs.3,75,000/-**| 13. Going by the law laid down by the Apex Court in **Master Mallikarjun's case (supra)** , for permanent disability above 10% and up to 30%, 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.3,00,000/-. In the instant case, the permanent disability of the appellant assessed in Ext.A12 disability certificate is 15%. Therefore, the appellant is entitled for a sum of **Rs.3,00,000/-** as compensation under this head. 14. In **Mallikarjun's case** , the injured had undergone MACA No.463 of 2008 9 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 12 days, a sum of **Rs.12,500/-** can be granted as compensation under this head. 15. 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.A7 series of medical bills are for a sum of Rs.17,074/-. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.29,574/-** (12,500 + 17,074). 16. 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, considering the nature of injuries sustained and also the disabilities noted in Ext.A12 disability certificate, the appellant is granted a sum of **Rs.12,500/-** under this head. MACA No.463 of 2008 10 17. In the result, the total compensation in O.P.(MV) No.522 of 2003 is re-fixed as Rs.3,54,574/- (3,00,000 + 12,500 + 29,574 + 12,500) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.2,98,750/-** (Rupees two lakhs ninety eight thousand seven hundred and fifty only) [3,54,574 - 55,824] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. 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. 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.D162475/2016 dated 07.11.2019. The appellant shall provide his 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 MACA No.463 of 2008 11 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** JV **JUDGE**