MACA.No.1854 OF 2017 against the Award in OP(MV)No.925/2014, dated 22-02-2017, of the Motor Accidents Claims Tribunal, Muvattupuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **SATURDAY, THE 16TH DAY OF NOVEMBER 2019 / 25TH KARTHIKA, 1941** ## **MACA.No.1854 OF 2017** **AGAINST THE AWARD IN OP(MV)NO.925/2014 DATED 22-02-2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/1ST RESPONDENT:** ## **TONY** **S/O. MANI,KARAKOMBIL HOUSE, NADUKANI P.O., KEERAMPARA VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT,PIN - 686 691.** ## **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS/PETITIONER/2ND RESPONDENT :** - **1 SHIHABUDHEEN S/O. MEERAN, MADAVANA KUDIYIL HOUSE,PAIMATTOM KARA, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **2 THE ORIENTAL INSUTANCE CO.LTD. EMM PLAZA, KOTHAMANGALAM -686 691, ERNAKULAM DISTRICT.** ## **R2 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1854 OF 2017** **2** ## **JUDGMENT** This appeal arises out of the award dated 22.02.2017 passed by the Motor Accidents Claims Tribunal, Muvattupuzha in O.P(MV)No.925 of 2014, a claim petition filed under Section 166 of the Motor Vehicles Act by the 1[st] respondent/claimant, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 28.07.2014, while he was riding a motorcycle bearing registration No.KL-44/A-9438. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-7/V-3003, owned and driven by the appellant, who was the 1[st] respondent before the Tribunal and insured with the 2[nd] respondent herein. In the accident, the 1[st] respondent/claimant sustained injuries. Alleging that the accident occurred due to rash and negligent driving of the car by the appellant, claim petition was filed before the Tribunal, claiming a total compensation of Rs.4,38,000/under various heads, which was limited to Rs.3,00,000/-, for the purpose of payment of Court Fee. 2. Before the Tribunal, the appellant/1[st] respondent **MACA.No.1854 OF 2017** **3** filed written statement admitting the accident; however denying the negligence alleged against him. It was contended that the compensation claimed is excessive and that, the vehicle was having valid insurance coverage with the 2[nd] respondent. 3. The 2[nd] respondent insurer filed a written statement admitting the policy coverage of the car. It was contended that, at the time of accident, the appellant/1[st] respondent was not holding a valid driving licence and in such circumstances, there is violation of policy conditions. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A11 were marked on the side of the claimant. Ext.B1, a copy of the insurance policy, was marked on the side of the respondents. 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 driving of the car by **MACA.No.1854 OF 2017** **4** the appellant. Since the vehicle was covered by a valid insurance policy, the 2[nd] respondent insurer held liable to indemnify the insured. However, since the appellant was driving the car without a valid driving licence, the 2[nd] respondent insurer was granted recovery right to proceed against the appellant for the amount of compensation awarded to the claimant. Under various heads, the Tribunal awarded a total compensation of Rs.1,60,440/- together with interest at the rate of 6% per annum from the date of petition, i.e., from 15.11.2014, till the date of payment with proportionate cost and directed the 2[nd] respondent insurer to satisfy the award, subject to recovery right. 6. Challenging the award passed by the Tribunal to the extent of granting recovery right to the 2[nd] respondent insurer and by contending that the compensation awarded by the Tribunal under various heads are on the higher side, the appellant is before this Court in this appeal. 7. On 07.12.2017, this Court admitted the matter on the question of justifiability of the quantum awarded. 8. By order dated 07.06.2018, this Court stayed the **MACA.No.1854 OF 2017** **5** execution of the award in O.P(MV)No.925 of 2014 of the Motor Accidents Claims Tribunal, Muvattupuzha on deposit of Rs.50,000/- before the Tribunal, within 30 days from that date. 9. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 2[nd] respondent insurer. Despite service of notice, none appears for the 1[st] respondent claimant. 10. The learned Standing Counsel for the 2[nd] respondent would submit that the insurer deposited the amount of compensation awarded by the Tribunal on 19.06.2017. 11. Admittedly, the appellant, who was a person aged 57 years was driving the car without a valid driving licence, in violation of the statutory requirements under sub-section (1) of Section 3 of the Motor Vehicles Act. As evident from Ext.A6 charge sheet in Crime No.1818/14 of Kothamangalam Police Station, the appellant was charge sheeted by police under sub-section (1) of Section 3 and Section 181 of the Motor Vehicles Act. Despite the order of **MACA.No.1854 OF 2017** **6** the Tribunal in I.A.No.3710 of 2015 the appellant failed to produce his driving licence. In such circumstances, no interference is warranted on the finding of the Tribunal as to violation of policy conditions and also the consequential recovery right. 12. 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 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. 13. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench **MACA.No.1854 OF 2017** **7** 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 compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 14. At the time of accident, the 1[st] respondent/claimant was aged 32 years. He was working as a Office Attendant in the Regional Directorate of Technical Education, Kothamangalam. The document marked as Ext.A9 is the employment certificate and Ext.A10 is the salary certificate. As per Ext.A10 salary certificate, the total salary of the 1[st] respondent was Rs.20,075/-, which includes Basic Pay of Rs.17,500/-, Dearness Allowance of Rs.1,575/- and House **MACA.No.1854 OF 2017** **8** Rent Allowance of Rs.1,000/-. After deduction of Rs.5,281/(GPF - Rs.2,000/-; Group Insurance Scheme - Rs.150/-; LIC premium - Rs.923/-; NPS – Rs.1,908/-; and State Life Insurance – Rs.300/-) the net salary comes to Rs.14,794/-. 15. One of the contentions raised by the learned counsel for the appellant is that the monthly income of the 1[st] respondent has to be taken as Rs.14,794/- instead of Rs.20,075/-. The said contention can only be rejected since deductions made towards GPF, GIS, LIC premium, NPS, etc. cannot be excluded from the monthly income of the 1[st] respondent. The notional monthly income of the 1[st] respondent taken for awarding compensation for permanent disability is only 50% of the total salary and the Tribunal awarded a compensation of Rs.29,160/- under this head, taking a multiplier of 9 applicable to the age group 56 to 60 years (after the retirement of the 1[st] respondent) and the percentage of permanent disability as 3%. Therefore, the compensation awarded by the Tribunal under this head cannot be said to be on the higher side, warranting an interference in this appeal. **MACA.No.1854 OF 2017** **9** 16. Another contention raised by the appellant is that, the compensation awarded towards loss of earning is on the higher side. As per Ext.A9 employment certificate, the 1[st] respondent was on leave without allowance on medical grounds for the period from 29.07.2014 to 10.08.2014. Therefore, the compensation of Rs.8,030/- awarded by the Tribunal towards loss of earning, for the said period, cannot be said to be on the higher side. 17. Towards pain and sufferings, the Tribunal awarded a sum of Rs.50,000/-. As evident from Ext.A7 wound certificate, the 1[st] respondent sustained volar barton fracture left-intra articular fracture of the distal radius with dislocation of the radio carpel joint and fracture radian neck left. As per Ext.A8 medical certificate, he had undergone inpatient treatment for a period of six days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation of Rs.50,000/- awarded under the head pain and suffering, which is on the higher side, is scaled down to Rs.30,000/-, resulting an **excess payment** of **Rs.20,000/-** . **MACA.No.1854 OF 2017** **10** 18. Towards loss of amenities, the Tribunal awarded a compensation of Rs.25,000/-. No documents were placed before the Tribunal to prove any permanent disability of the 1[st] respondent on account of the injuries sustained in the accident. Considering the nature of injuries sustained, the compensation under the head loss of amenities, which is on the higher side, is scaled down to Rs.5,000/-, resulting another **excess payment** of **Rs.20,000/-** . 19. In the result, the total compensation awarded by the Tribunal is scaled down to **Rs.1,20,440/-** (Rupees One lakh twenty thousand four hundred and forty only) [1,60,440 – (20,000 + 20,000)] together with interest at the rate of 6% per annum from the date of petition, i.e., from 15.11.2014 till 19.06.2017 (the date on which the 2[nd] respondent insurer deposited the award amount before the Tribunal) with proportionate cost. The appellant shall satisfy the said amount less Rs.50,000/- deposited in terms of the interim order dated 07.06.2018, within two months from the date of receipt of a certified copy of this judgment. In case of default, the Tribunal shall proceed with execution of the **MACA.No.1854 OF 2017** **11** award in O.P(MV)No.925 of 2017, as modified in this appeal. The 2[nd] respondent insurer shall be entitled to proceed against the 1[st] respondent claimant for recovering the excess compensation of Rs.40,000/- together with 6% interest and proportionate cost. The statutory deposit of Rs.25,000/- made by the appellant shall be returned by the Tribunal. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/20/11