Mohandas v. K.J. Mathew and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** **MACA.No.2796 OF 2008** **AGAINST THE AWARD IN O.P.(MV) NO.1243/2002 DATED 31-12-2007 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER IN O.P(MV):** **MOHANDAS, S/O.KANARU T., AGED 49 YEARS, VAYAPPURATHU HOUSE, P.O.KANNAKARA, VIA. CHELANNUR, CALICUT.** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS IN O.P.(MV):** **1 K.J.MATHEW, DEEPTHI, P.O. CHERUPPA CALICUT. 2 THE ORIENTAL INSURANCE CO.LTD., JASEELA COMPLEX, NILAMBUR ROAD, MANJERI.** **R1 BY ADV. SRI.P.JAYASANKAR R2 BY ADV. SRI.N.S.NAJEEB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2796 OF 2008** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.1243 of 2002 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, 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 08.12.2001, while he was walking through the side of the public road. At the place of accident, he was knocked down by a car bearing registration No.KL-11/G-7807, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent driver filed written statement admitting the accident; however, denying negligence alleged against him. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the car involved in the **MACA.No.2796 OF 2008** -3- accident; however, denying the negligence alleged against the 1[st] respondent. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A5 were marked on the side of the appellant/claimant. 5. Before the Tribunal, the quantum of compensation alone was under challenge. The Tribunal by the impugned award dated 31.12.2007 awarded a total compensation of Rs.33,756/-, together with interest at the rate of 7.5% per annum from 08.05.2002 till realisation, with a cost of Rs.200/and the 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 and also the learned Standing Counsel for the 2[nd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent owner cum driver was dispensed with, by the order **MACA.No.2796 OF 2008** -4- of this Court dated 23.10.2019. 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. 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 **MACA.No.2796 OF 2008** -5- 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; |Sl.<br>No.|Head of claim|Amount allowed| |---|---|---| |1|Medical bills|Rs. 6,756/-| |2|Incidental charges|Rs. 2,000/-| |3|Pain & suffering|Rs. 8,000/-| |4|Loss of salary|Rs.14,000/-| |5|Loss of amenities|Rs. 2,500/-| |6|Transportation|Rs. 500/-| ||**Total**|Rs. 33,756/-| 12. The accident occurred on 08.12.2001. At the time of accident, the appellant was aged 43 years. He claimed a monthly income of Rs.7,000/- as Police Constable. The **MACA.No.2796 OF 2008** -6- document marked as Ext.A2 is the wound certificate and Ext.A3 is the reference card. As per medical records, in the accident, the appellant sustained fracture of lateral condyle of left tibia. He had undergone inpatient treatment for a period of 20 days. 13. On 11.11.2019, during the course of arguments, the learned counsel for the appellant pointed out that, though a disability certificate issued by the Medical Board at Medical College Hospital, Kozhikode assessing 10% permanent disability, on account of the injuries sustained in the accident, was produced before the Tribunal, the Tribunal did not even mark that document. Based on the said submission, Registry was directed to call for the Lower Court Records. 14. As borne out from the Lower Court Records, pursuant to the order dated 08.07.2003 of the Tribunal in O.P. (MV) No.1243 of 2002, the appellant appeared before the Medical Board at Medical College Hospital, Kozhikode and the report of the Medical Board was forwarded to the Tribunal along with a covering letter No.A8/243/02 dated 18.08.2003 of the Superintendent of that hospital, who is the Chairman of the **MACA.No.2796 OF 2008** -7- Medical Board. The said report along with covering letter was received in the office of the Tribunal, on 28.08.2003, and incorporated in the case records. However, the Tribunal passed the impugned award even without marking the said disability certificate. The procedure adopted by the Tribunal in disposing the claim petition without marking the disability certificate has to be deprecated in the strongest terms. 15. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 20 days. The accident is of the year 2001. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,500/-** (2,000 - 500). 16. The Tribunal awarded no amount towards bystander expenses and extra nourishment, instead granted a consolidated amount of Rs.2,000/- under the head incidental charges. The accident is of the year 2001 and the appellant **MACA.No.2796 OF 2008** -8- had undergone inpatient treatment for 20 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of Rs.3,000/(150 x 20) as compensation under the head bystander expenses and Rs.2,000/- (100 x 20) under the head extra nourishment. Deducting Rs.2,000/- awarded under the head incidental charges, the appellant is entitled for an additional compensation of **Rs.3,000/-** [(3,000 + 2,000) - 2,000] under the above heads. 17. The Tribunal awarded no amount towards damage to clothing. Considering the fact that the accident is of the year 2001, this Court deem it appropriate to grant a sum of **Rs.750/-** under this head. 18. Towards medical expenses, the Tribunal awarded a sum of Rs.6,756/-, covered by Ext.A5 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. **MACA.No.2796 OF 2008** -9- 19. 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.15,000/-, resulting an additional compensation of **Rs.7,000/-** (15,000 - 8,000). 20. Towards loss of salary, the Tribunal awarded a sum of Rs.14,000/-. In the absence of any reliable materials, 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. The Tribunal awarded no compensation under the head disability compensation. Though the disability assessed by the Medical Board at the Medical College Hospital will have no bearing on the earning capacity of the appellant while he is in service as Police Constable, the said disability will certainly have adverse effect on his earning capacity after his retirement. Therefore, the appellant is entitled for payment of disability compensation taking a notional monthly income of **MACA.No.2796 OF 2008** -10- Rs.3,500/- after retirement, applying the multiplier of 9 applicable to the age group 56 to 60 years. Taking the notional monthly income of Rs.3,500/- applying the multiplier of 9 and the percentage of disability as 10%, the compensation under the head permanent disability is calculated as **Rs.37,800/-** (3,500 x 12 x 9 x 10/100). 22. Towards loss of amenities, the Tribunal awarded a sum of Rs.2,500/-. As per the disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. Considering the nature of injuries sustained and 10% permanent disability on account of those injuries, the compensation under the head loss of amenities is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.7,500/-** (10,000 - 2,500) under this head. 23. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.57,550/-** (Rupees fifty seven thousand five hundred and fifty only) [1,500 + 3,000 + 750 + 7,000 + 37,800 + 7,500] in this appeal, which will carry interest at the rate of **8%** per annum **MACA.No.2796 OF 2008** -11- 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/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 submit 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** bpr