JITHIN (MINOR) AGED 9 YEARS v. ANILKUMAR and THE NEW INDIA ASSURANCE 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.1593 OF 2010** **AWARD IN OP(MV)No.631/2007 DATED 31.12.2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER** **JITHIN (MINOR) AGED 9 YEARS,** **KUNNUMPURAM HOUSE, KUTHAMPULLY PO, THRISSUR, REP BY HIS FATHER MANI, AGED 31 YEARS, S/O MUTHUSWAMI.** **ADVS.SRI.SHEJI P.ABRAHAM** **SMT.GISA SUSAN THOMAS** ## **RESPONDENTS/RESPONDENTS** **1. ANILKUMAR, S/O THANKAPPAN PILLAI, KUNDOOR HOUSE, KUTHAMBULLY DESOM, KANIYARKODE VILLAGE, THIRUVILLWAMALA THRISSUR – 680 584, (OWNER-CUMDRIVER OF MOTOR CYCLE NO.KL 8/V-9388)** **2. THE NEW INDIA ASSURANCE CO.LTD, PERINCHERY BUILDINGS, ROUND NORTH, THRISSUR – 680581, POLICY NO.760 301/31/06/01/00015009, VALID FROM 17.1.07 TO 16.1.08)** **BY ADV. SRI.P.JAYASANKAR** **BY ADV.SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 6.2.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1593 of 2010 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.631/2007 on the file of the Motor Accidents Claims Tribunal, Ottappalam, 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 03.09.2006, while he was walking through the side of a public road. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-8/V-9388, owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant, who was then a minor aged 9 years, sustained injuries. Alleging that the accident occurred due to rash and negligent riding of the 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-cumrider of the motorcycle remained absent and he was set ex parte. 3. The 2[nd] respondent insurer filed written statement admitting the insurance coverage of the motorcycle involved in MACA No.1593 of 2010 the accident; however, denying negligence alleged against the 1[st] respondent rider. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A11 were marked on the side of the claimant. Both sides have not chosen to adduce any oral evidence. 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 riding of the motor cycle by the 1[st] respondent rider. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.45,800/-, together with interest at the rate of 8% per annum from the date of petition till realisation. 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 and also the learned Standing Counsel for the 2[nd] respondent insurer. MACA No.1593 of 2010 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 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 MACA No.1593 of 2010 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; |Head of claim||Amount awarded<br>(in Rs.)| |---|---|---| |Loss of earning (Total)||--| |Transport to hospital||3,000/-| |Extra nourishment||| |Damage to clothing||| |Treatment expenses||20,450/-| |Personal assistance||1,350/-<br>(150 x 9)| |Pain and suffering||12,000/-| |Loss of amenities||6,000/-| |Disfiguration||3,000/-| |Total||45,800/-<br>(with 7% interest)| 12. The accident occurred on 03.09.2006. At the time of accident, the appellant was a minor aged 9 years. The MACA No.1593 of 2010 document marked as Ext.A3 is the wound certificate and Exts.A7 and A8 are discharge summaries. As per medical records, in the accident, the appellant sustained severe diffuse head injury; fracture right temporo parietal bone; and right temporo parietal extra dural haemorrhage. The appellant had undergone inpatient treatment for a total period of 9 days, under two different spells. Ext.A11 series of medical bills are for a sum of Rs.20,450/-. 13. Towards transportation to hospital, extra nourishment and damage to clothing, the Tribunal awarded a consolidated sum of Rs.3,000/-. Towards bystander expenses the Tribunal awarded a further sum of Rs.1,300/-. The accident is of the year 2006 and the appellant had undergone inpatient treatment for a period of 9 days, under two different spells. Considering the nature of injuries sustained and the treatment the appellant had undergone, a sum of Rs.2,000/- is granted under the head transportation to hospital; Rs.1,800/- (200 x 9) towards bystander expenses; Rs.1350/- (150 x 9) towards extra nourishment; and Rs.1,000/- towards damage to clothing, resulting an additional compensation of **Rs.1,800/-** MACA No.1593 of 2010 [(2,000 + 1,800 + 1,350 + 1,000) – (3,000 + 1,350)] under the above heads. 14. Towards medical expenses, the Tribunal awarded a sum of Rs.20,450/-, covered by Ext.A11 series of 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. 15. Towards pain and suffering the Tribunal awarded a sum of Rs.12,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.13,000/-** (25,000 – 12,000). 16. Towards loss of amenities, the Tribunal awarded a sum of Rs.6,000/-. In the absence of any materials to show that the injuries sustained in the accident had resulted in any permanent disability, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, MACA No.1593 of 2010 which requires no enhancement in this appeal. 17. Towards disfigurement, the Tribunal awarded a sum of Rs.3,000/-. The injuries sustained in the accident had resulted in a 'U' shaped big scar on the head, just above right ear. Considering the nature of disfiguration, the compensation awarded by the Tribunal under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.12,000/-** (15,000 – 3,000). 18. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.26,800/-** (Rupees twenty six thousand eight hundred only) [1,800 + 13,000 + 12,000] 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 towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellant shall be made taking note of the law on the point MACA No.1593 of 2010 and 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 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** Mrcs.