K.P. Abdul Rahim v. Sunil, P.K. Unnikrishnan & National Insurance Company 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.776 OF 2015 ``` ``` AGAINST THE AWARD DATED 20.08.2013 IN O.P.(MV)NO.1301 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ``` ## **`APPELLANT/CLAIMANT:`** ``` K.P.ABDUL RAHIM, S/O.C.A.IBRAHIM, EDAT, OPPOSITE IMS, KUNHIMANGALAM AMSOM, EDANAD DESOM, P.O.EDAT, MINOR, REPRESENTED BY HIS MOTHER K.P.SUBAIDA, W/O.C.A.IBRAHIM, EDAT, (PETITIONER DECLARED AS MAJOR ON IA 4087/2011, DT.22-8- 2011). ``` ``` BY ADVS.SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1 M.SUNIL, S/O.KRISHNAN, THANDRAI HOUSE, KUNHIMANGALAM AMSOM, MOOSARIKKOVVAL, P.O.KUNHIMANGALAM, KANNUR DISTRICT, PIN-670309. 2 P.K.UNNIKRISHNAN, S/O.KARUNAKARAN, KUNHIMANGALAM AMSOM, VADAKUMBAD, P.O.KUNHIMANGALAM, KANNUR DISTRICT, PIN-670309. 3 NATIONAL INSURANCE COMPANY LTD. PARUMBA, PAYYANNUR P.O., KANNUR DISTRICT, PIN-670 001. BY ADV N.S.NAJEEB ``` ``` 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.776 of 2015 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.1301 of 2006 on the file of the Motor Accidents Claims Tribunal, Thalassery, 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 10.06.2006, while he was riding a bicycle from Edat to Kunhimangalam. At the place of the accident, the bicycle was hit by a motorcycle bearing registration No.KL-13/G-9964, ridden by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the time of the accident, the claimant was a minor aged 15 years. During the pendency of the claim petition, the claimant attained majority, which was declared as per the order dated 22.08.2011 in I.A.No.4087 of 2011. In the accident, the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the motorcycle by the 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,45,000/- under various heads. Before the Tribunal, the 1[st] respondent rider and the 2[nd] respondent owner did not file a written statement. The 3[rd] respondent insurer filed a written statement admitting the insurance coverage of the motorcycle 3 M.A.C.A.No.776 of 2015 involved in the accident. The insurer disputed the liability, by contending that respondents 1 and 2 neither intimated the accident nor produced the vehicle particulars and documents for verification. The insurer contended that the compensation claimed is highly exorbitant. 2. Before the Tribunal, Exts.A1 to A19 were marked on the side of the appellant-claimant, who was examined as PW1. The disability certificate issued by the Medical Board constituted at Pariyaram Medical College Hospital was marked as Ext.X1. The respondents have not chosen to adduce any oral or documentary evidence. After considering the pleadings and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle by the 1[st] respondent rider. Since the insurance coverage of the 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.2,45,100/-, together with interest at the rate of 8% per annum from the date of petition (18.09.2006) till the 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, O.P.(MV) is partly allowed. Respondents 1 to 4 M.A.C.A.No.776 of 2015 3 are jointly and severally liable to pay compensation of Rs.2,45,100/- (Rupees two lakh forty five thousand and one hundred only) to the petitioner with interest at the rate of 8% per annum from the date of petition (18.09.2006) till realisation with proportionate costs. Issue found accordingly. 20. In view of the existing valid insurance policy at the time of accident, 3[rd] respondent the insurer shall make the following payments. - 1) R3 shall produce an account payee cheque for Rs.1,814/- in the name of MACT, Thalassery towards court fee. - 2) R3 shall produce an account payee cheque for Rs.2,00,000/- in the name of the petitioner and the petitioner can withdraw the amount. - 3) R3 shall produce another account payee cheque in the name of the petitioner for the entire balance amount due to him with interest and proportionate costs which shall be deposited in a Nationalised Bank for a period of one year and the petitioner can withdraw the amount thereafter.” 3. 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. The appeal was filed along with C.M.Application No.880 of 2015, seeking an order to condone the filing delay of 251 days, which was condoned by the order dated 22.11.2022, on condition that the appellant-claimant shall not be 5 M.A.C.A.No.776 of 2015 entitled for interest on the amount, if any, granted by this Court as enhanced compensation, for the period of delay in filing the appeal. 4. On 28.11.2022, when this appeal came up for admission, this Court admitted the matter on file. The learned Standing Counsel took notice for the 3[rd] respondent. Since the insurance coverage of the offending vehicle is admitted, notice to respondents 1 and 2 was dispensed with. 5. Heard the learned counsel for the appellant-claimant and also the learned Standing Counsel for the 3[rd] respondentinsurer. 6. The issue that arises for consideration in this appeal is as to whether the appellant-claimant is entitled to enhancement of the compensation awarded by the Tribunal under various heads. 7. 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. 6 M.A.C.A.No.776 of 2015 But at the same time, it has 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. 8. 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 standards 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. 9. 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>awarded (Rs.)|Basis/vital<br>details<br>in<br>a<br>nutshell| |---|---|---|---|---| |1|Pain and suffering||25,000.00|| |2|Loss of amenities||15,000.00|| 7 M.A.C.A.No.776 of 2015 |3|Extra nourishment||1,500.00|| |---|---|---|---|---| |4|Bystanders expense||9,400.00|| |5|Damage to clothing||500.00|| |6|Medical/transportation||1,21,700.00|| |7|Disability compensation||72,000.00|| ||TOTAL|2,45,000.00|<br>2,45,100.00|| 10. The learned counsel for the appellant would contend that the compensation awarded by the Tribunal under the head pain and suffering, loss of amenities, medical/transportation and disability compensation are on the lower side. The learned counsel would submit that considering the nature of injuries sustained and the disability that had arisen out of those injuries, the Tribunal out to have awarded compensation towards disfiguration/loss of marriage prospects. 11. On the other hand, the learned counsel for the 3[rd] respondent would contend that the compensation awarded by the Tribunal under various heads represents just and reasonable compensation. Though the total compensation claimed by the claimant was only Rs.2,45,000/-, the Tribunal awarded a total compensation of Rs.2,45,100/-. 12. The accident occurred on 10.06.2006. At the time of the accident, the appellant-claimant was a minor aged 15 years. The document marked as Ext.A2 is the wound certificate and Exts.A5 to A10 are the discharge cards. In the accident, he 8 M.A.C.A.No.776 of 2015 sustained a left thigh bone displaced fracture lower end of the femur. Immediately after the accident, the appellant was taken to Co-operative Hospital, Payyannur and treated there as an inpatient from 10.06.2006 to 21.06.2006. Thereafter the appellant was taken to Unity Health Complex, Mangalore. 13. The document marked as Ext.X1 is the disability certificate issued by the Medical Board constituted at KCHC Hospital, Pariyaram assessing the whole-body disability of the appellant-claimant as 40%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 14. Considering the nature of injuries sustained by the appellant and the treatment he had undergone, Rs.25,000/awarded by the Tribunal under the head pain and suffering represents just and reasonable compensation, which requires no enhancement in this appeal. 15. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. In Ext.X1 disability certificate, the whole-body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 40%. Considering the nature of injuries sustained and 40% whole-body disability on account of 9 M.A.C.A.No.776 of 2015 those injuries, as assessed in Ext.X1 disability certificate, the compensation awarded by the Tribunal under the head loss of amenities is re-fixed as Rs.40,000/-, resulting in an additional compensation of **Rs.25,000/-** (40,000 - 15,000). 16. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 47 days. The accident is of the year 2006. Towards medical/transportation expenses, the Tribunal awarded a sum of Rs.1,21,700/-. Ext.A18 series medical bills and Ext.A19 series ambulance bills are for a total amount of Rs.1,21,620/-. Along with this appeal, the appellant produced Annexure A1 certificate dated 28.01.2014 issued by the Consultant Orthopedic Surgeon of Indiana Hospital and Heart Institute, Mangalore, wherein it is stated that he is having persisting foot drop of the left lower limb. He is advised to use an ortho splint for the time being and advised to undergo tendon transfer to improve his gait. The appellant has not produced any documents to show that he had undergone tendon transfer or any other treatment for foot drop. Annexure A2 series of bills for the year 2013 is for a total sum of Rs.2,312/-. Therefore, the appellant is granted an additional compensation of **Rs.2,500/-** towards medical/transportation expenses. 17. Towards disability compensation, the Tribunal awarded 10 M.A.C.A.No.776 of 2015 a sum of Rs.72,000/-, taking the probable monthly income of the appellant as Rs.1,000/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of disability as 40% as assessed in Ext.X1. The accident is of the year 2006. At the time of the accident, the appellant was aged 15 years. Considering the above aspects, the probable monthly income of the appellant, for the purpose of assessing compensation under the head permanent disability is re-fixed as Rs.3,500/-. Applying the multiplier of 15, considering the age of the appellant at the time of the accident, and the percentage of disability as 40%, the compensation under the head permanent disability is re-fixed as Rs.2,52,000/- (3,500 x 12 x 15 x 40%), resulting an additional compensation of **Rs.1,80,000/-** (2,52,000 - 72,000). 18. Towards the head disfiguration/loss of marriage prospects, no amount has been awarded by the Tribunal. Considering the nature of injuries sustained in the accident, at the age of 15 years, and the resultant disfiguration, the appellant is granted a sum of **Rs.15,000/-** under the head disfiguration/loss of marriage prospects. 19. In the result, the appellant-claimant will be entitled to payment of an additional compensation of **Rs.2,22,500/-** (Rupees Two lakh twenty two thousand and five hundred only) 11 M.A.C.A.No.776 of 2015 [25,000 + 2,500 + 1,80,000 + 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realization. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, excluding the period of delay of 251 days in filing this appeal, 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 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 appellant-claimant 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 page of the Bank Passbook having 12 M.A.C.A.No.776 of 2015 details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with a 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 In the judgment dated 21.06.2023 of MACA 776/2015, the sentences from line 13 at page 11 of Para.19 – “The insurer shall also deduct the liability of the appellant-claimant 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.” stands deleted and the corrected paragraph No.19 of the judgment shall be read as; “19. In the result, the appellant-claimant will be entitled to payment of an additional compensation of **Rs.2,22,500/-** (Rupees Two lakh twenty two thousand and five hundred only) [25,000 + 2,500 + 1,80,000 + 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of 13 M.A.C.A.No.776 of 2015 petition till realization. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, excluding the period of delay of 251 days in filing this appeal, 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 No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant to 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 a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment.” as per order dated 24.08.2023 in MACA No.776/2015. Sd/- Deputy Registrar 14 M.A.C.A.No.776 of 2015 ``` APPENDIX ``` ## **`APPELLANTS ANNEXURES :`** ``` ANNEXURE A1 THE MEDICAL CERTIFICATE ISSUED FROM INDIAN HOSPITAL, MANGALORE DATED 28.01.2014 ANNEXURE A2 SERIES THE MEDICAL BILLS ```