Manisha (minor) through her father Muraleedharan v. Sidhi Chazhiyattiri Peedikayil Veedu; Moideenkutty Chazhiyattiri Peedikayil Veedu; The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941** **MACA.No.2459 OF 2009** **AGAINST THE AWARD IN OP(MV)No.280/2005 DATED 10-09-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **MANISHA (MINOR AGED 8 YEARS) D/O.MURALEEDHARAN, ODATHEDATH HOUSE, CHATHANOUR P.O., PALAKKAD DISTRICT. (MINOR APPELLANT REP.BY HER FATHER MURALEEDHARAN,S/O.SANKUNNI PANICKER, RESIDING AT ODATHEDATH HOUSE, CHATHANOUR P.O.,PALAKKAD DISTRICT)** **BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SABU SREEDHARAN SRI.BENOJ C AUGUSTIN SRI.PRATHAP PILLAI SRI.RAJAN VELLOTH SRI.SAIJO HASSAN** ## **RESPONDENTS/RESPONDENTS:** **1 SIDHI CHAZHIYATTIRI PEEDIKAYIL VEEDU, CHAZHIYATTIRI P.O.,PERINGODE VIA, PALAKKAD DISTRICT.** **2 MOIDEENKUTTY CHAZHIYATTIRI PEEDIKAYIL VEEDU, CHAZHIYATTIRI P.O.,PERINGODE VIA, PALAKKAD DISTRICT.** M.A.C.A. No.2459/09 -:2:- **3 THE NEW INDIA ASSURANCE COMPANY LIMITED PERINCHERRY BUILDING,ROUND NORTH, THRISSUR.** **SRI A.A.ZIYAD RAHMAN, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.2459/09 -:3:- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.280 of 2005 on the file of the Motor Accidents Claims Tribunal, Ottapalam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 15.09.2004, while the appellant, a minor aged 8 years, was walking along the side of a public road. At the place of accident, she was knocked down by a jeep bearing registration No.KL-10/C 7972, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of jeep by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent driver and the 2[nd] respondent owner remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the jeep involved in the M.A.C.A. No.2459/09 -:4:- accident; however, denying the negligence alleged against the 1[st] respondent driver. The insurer contended that the compensation claimed under various heads is highly excessive. 4. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral or documentary 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 offending jeep by the 1[st] respondent driver. 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.33,840/- together with interest at the rate of 7% per annum from the date of petition, i.e., 09.03.2005, till realisation, with a cost of Rs.1,000/-, and the 3[rd] respondent 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 M.A.C.A. No.2459/09 -:5:- and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent driver and the 2[nd] respondent owner was dispensed with, by the order of this Court dated 13.12.2019. 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. M.A.C.A. No.2459/09 -:6:- 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 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| |---|---|---| |1|Transport to hospital, extra<br>nourishment & Damage to<br>clothing|2,500/-| |2|Bystander's expenses|1,500/-| |3|Medical expenses including CT<br>scan|16,840/-<br>(15,300 + 1540)| |4|Pain and suffering|8,000/-| |5|Loss of amenities|5,000/-| ||**Total claim**|**33,840/-**| M.A.C.A. No.2459/09 -:7:- 12. The accident occurred on 15.09.2004. At the time of accident, the appellant was aged 8 years. 13. As per Ext.A5 accident register cum wound certificate, in the accident, the appellant sustained depressed fracture temporal bone with SDH. The document marked as Ext.A7 is the CT Scan report. The appellant had undergone inpatient treatment for a period of 10 days. Ext.A6 series of medical bills are for a sum of Rs.15,220/-. 14. The accident is of the year 2004. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 10 days. Towards transportation to hospital, extra nourishment and damage to clothing, the Tribunal awarded a consolidated sum of Rs.2,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head transportation expenses is re-fixed as Rs.2,500/-; the compensation under the head bystander expenses is re-fixed as Rs.1,500/- (150 x 10); the compensation under the head extra nourishment is re-fixed as Rs.1,000/-(100 x 10); and compensation under the head damage to clothing is M.A.C.A. No.2459/09 -:8:- re-fixed as Rs.750/- resulting an additional compensation of **Rs. 3,250/-** [(2,500 + 1,500 + 1,000 + 750) – 2,500]. 15. Towards medical expenses, the Tribunal awarded a sum of Rs.16,840/-, covered by Ext.A6 series of medical bills and Ext.A7 CT Scan cash receipt. 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.8,000/-. 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 the head pain and suffering is re-fixed as Rs. 12,500/-, resulting an additional compensation of **Rs. 4,500/-** (12,500 – 8,000). 17. Towards loss of amenities, the Tribunal awarded a sum of Rs.5,000/-. Though no materials were produced before the Tribunal to prove any permanent disability out of the injury sustained in the accident, considering the fact that the appellant sustained injury at the age of 8 years, the compensation M.A.C.A. No.2459/09 -:9:- awarded by the Tribunal under this head is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.2,500/-** (7,500 – 5,000). In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.10,250/-** (Rupees Ten thousand two hundred and fifty only) (3,250 + 4,500 + 2,500) 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 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 shall provide her bank account details before the Tribunal, with copy to the learned Standing Counsel for the M.A.C.A. No.2459/09 -:10:- 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** vps