Minor Fatima Nesila (through her guardian Sulaiman) v. Benny Mulavoor Kara, K.M. Sulfikkar & The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 08TH DAY OF NOVEMBER 2019 / 17TH KARTHIKA, 1941** # **MACA.No.1009 OF 2010** **AGAINST THE AWARD IN O.P.(MV) NO.2469/2004 DATED 20-02-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/CLAIMANT:** **MINOR FATHIMA NESILA REPRESENTED BY HER FATHER AND AND LEGAL GUARDIAN, SULAIMAN, S/O.MUSTHAFA @, MUHAMMED, NANETHAN HOUSE, ELAMBRA KARA, ERAMALLOOR VILLAGE NOW RESIDING AT ODAKKALY KARA, ASAMANNOOR VILLAGE.** ## **BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR)** ## **RESPONDENTS/RESPONDENTS:** - **1 BENNY MULAVOOR KARA, (VAYANASALAPADY BHAGOM), MULAVOOR VILLAGE.** - **2 K.M.SULFIKKAR, S/O. MEERAN, PULLAYATHU HOUSE, CHERUVATTOOR P.O., KOTHAMANGALAM.** - **3 THE NEW INDIA ASSURANCE CO.LTD., MUVATTUPUZHA BRANCH.** ## **R3 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1009 OF 2010** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.2469 of 2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, 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 14.08.2003, at the age of 10 years, while she was standing on the side of Aluva-Munnar road. At the place of accident, she was knocked down by a bus bearing registration No.KL-6/1152 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 the bus by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.1,50,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement contending that the accident occurred solely due to the negligence on the part of the appellant/claimant who attempted to cross the road without **MACA.No.1009 OF 2010** -3- proper outlook. The negligence alleged against the 1[st] respondent driver was denied. The insurer admitted insurance coverage of the vehicle at the time of accident. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A10 were marked on the side of the appellant/claimant. No oral or documentary evidence was adduced on the side of the respondents. 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 driving of the bus 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.71,300/-, together with interest at the rate of 7.5% per annum from the date of application till 30.06.2007; at the rate of 7.5% per annum till 30.09.2008; and thereafter, at the rate of 8% per annum till realisation; and the 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. **MACA.No.1009 OF 2010** -4- 6. Heard the learned counsel for the appellant/ claimant 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 was dispensed with, by the order of this Court dated 05.11.2019. 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 **MACA.No.1009 OF 2010** -5- 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 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.|Head of claim|Rupees| |---|---|---| |1|Treatment expenses|Rs.25,050/-| |2|Transportation expenses|Rs. 1,000/-| |3|Pain and suffering|Rs.12,000/-| |4|Loss of amenities|Rs. 8,000/-| |5|Damage to clothings|Rs. 250/-| **MACA.No.1009 OF 2010** -6- |6|Attendant's charges|Rs. 1,000/-| |---|---|---| |7|Extra nourishment|Rs. 1,000/-| |8|Future treatment expenses|Rs.20,000/-| |9|Disfigurement|Rs. 3,000/-| |**Total**||**Rs.71,300/-**| 11. The accident occurred on 14.08.2003. At the time of accident, the appellant was aged 10 years. As per Ext.A5 wound certificate dated 14.08.2003 issued from Mar Baselios Medical Mission Hospital, Kothamangalam, the appellant sustained contusion with lacerated wound on the right forehead; contusion on the upper lip; contusion on the left elbow; lacerated wound over left elbow with skin loss of 7 x 7 cm size; lacerated wound of 10 x 5 x 2 cm over medical aspect of lower thigh; contusion on the left leg middle 3[rd] ; and contused abrasion over left forearm. She was referred to Plastic Surgeon. Ext.A6 wound certificate issued by Medical Trust Hospital shows that she was admitted in that hospital on 14.08.2003 with the aforementioned injuries. X-ray showed no bone injury, and the C.T. Scan of brain showed bilateral temporal subarachanoid haemorrhage. As per Ext.A7 discharge summary dated 29.08.2003, the appellant sustained multiple abrasions over face/extremities, lip contusion, fracture to teeth, punctured wound left side forehead, lacerated wound left forearm, left knee, etc. She **MACA.No.1009 OF 2010** -7- was treated conservatively with antibiotics, analgesics, anti epileptic drugs, H2 blockers and cerebro protective measures. Ext.A8 certificate issued by Medical Trust Hospital would show that the accident has caused a unsightly scar on her left forearm, and she requires further operations to correct cosmetic deformity of her left forearm, and the total cost for such treatment is expected to be around Rs.60,000/-. Ext.A9 series of photographs show the said scar. Ext.A10 series of medical bills are for a total sum of Rs.25,048.50/-. 12. Towards treatment expenses, the Tribunal awarded a sum of Rs.25,050/-, covered by Ext.A10 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head is just and reasonable, which requires no enhancement in this appeal. 13. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 14 days. Towards transportation expenses, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that on 14.08.2003, the appellant was referred from Mar Baselios Mission Hospital, Kothamangalam to Medical Trust Hospital, Ernakulam, the **MACA.No.1009 OF 2010** -8- compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.2,000/-** (3,000 - 1,000). 14. Towards attendant charges and extra nourishment, the Tribunal awarded a sum of Rs.1,000/- each. The accident is of the year 2003. The appellant had undergone inpatient treatment for 14 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, she is granted Rs.2,100/- (150 x 14) towards attendant charges, resulting an additional compensation of **Rs.1,100/-** (2,100 - 1,000). She is granted Rs.1,400/- (100 x 14) under the head extra nourishment, resulting an additional compensation of **Rs.400/-** (1,400 - 400). 15. Towards medical expenses, the Tribunal awarded a sum of Rs.25,050/-, covered by Ext.A10 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. 16. Towards future treatment expenses, the Tribunal awarded a sum of Rs.20,000/-. Though no attempt was made **MACA.No.1009 OF 2010** -9- to prove Ext.A8 certificate by examining the person concerned, Ext.A8 certificate issued from Medical Trust Hospital would show that the injuries sustained in the accident has resulted in an unsightly scar on the left forearm, which requires further operations to correct cosmetic deformity and the treatment expenses is expected to be Rs.60,000/-. Ext.A9 series of photographs are placed on record. Considering the fact that the injuries sustained by the appellant at the age of 10 years, had resulted in an unsightly scar on her left forearm, the compensation under this head is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs.10,000/-** (30,000 - 20,000), which will not carry interest. 17. Towards disfigurement, the Tribunal awarded a sum of Rs.3,000/-. Considering the disfigurement on the left forearm of the appellant, as borne out from Ext.A9 series of photographs, the compensation under this head is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.7,000/-** (10,000 - 3,000). 18. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2003, the compensation under this head is re-fixed **MACA.No.1009 OF 2010** -10- as Rs.750/-, resulting an additional compensation of **Rs.250** /- (500 - 250). 19. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. Considering the nature of injuries sustained by the appellant at the age of 10 years and the treatment she 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.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 - 12,000). 20. Towards loss of amenities, the Tribunal awarded a sum of Rs.8,000/-. No documents were placed before the Tribunal to show that, the injuries sustained in the accident had resulted in any permanent disability. In such circumstances, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 21. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.24,750/-** (Rupees twenty four thousand seven hundred and fifty only) [2,000 + 1,100 + 400 + 10,000 + 8,000 + 250 + 3,000] in **MACA.No.1009 OF 2010** -11- this appeal. The additional compensation granted in this appeal, excluding Rs.10,000/- granted under the head future treatment expenses 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. Payment of additional compensation to the appellant shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr