Murughan v. Lakshmi C., Arun S. and Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941** ## **MACA.No.1390 OF 2007** **AGAINST THE AWARD IN OP(MV)NO.1419/2001 DATED 29-12-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANT/PETITIONER :** **MURUGHAN, S/O.ALAGHARSWAMY, RESIDING AT KANALMEDU, KALMANDAPAM, PALAKKAD DISTRICT.** **BY ADVS. SRI.JIBU P THOMAS SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS :** - **1 LAKSHMI.C., RESIDING AT 'PRIYA NIVAS' MYTHRI NAGAR, KALLEPPULLY, PALAKKAD DISTRICT.** - **2 ARUN S/O.MARKOSE RESIDING AT 'PRIYA NIVAS', MYTHRI NAGAR,, KALLEPPULLY, PALAKKAD DISTRICT.** - **3 THE ORIENTAL INSURANCE COMPANY LIMITED SHOBHA T.S.M. COMPLEX, R.S.ROAD, PALAKKAD. R1 BY ADV. SRI.T.K.SANDEEP** **R3 BY SMT. K.S.SANTHI, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1390 OF 2007** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1419 of 2001 on the file of the Motor Accidents Claims Tribunal, Palakkad, a claim petition filed under Sections 163A and 166 of the Motor Vehicles Act, 1988 treated by the Tribunal as one under Section 166 of the said Act, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 03.09.2000, while he was walking along the side of a public road. At the place of accident, he was knocked down by a scooter bearing registration No.KL-9/D-2110 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant, who was then a minor aged 15 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of scooter by the 2[nd] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,30,700/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 did not file written statement. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the **MACA.No.1390 OF 2007** **3** scooter involved in the accident; however, denying negligence alleged against the 2[nd] respondent rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. The injured (who then attained majority) was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 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 riding of the scooter by the 2[nd] respondent rider. 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.42,229/- (wrongly shown as Rs.40,500/- in the award), together with interest at the rate of 6% per annum from the date of petition, i.e., 12.10.2001 till date of deposit/ recovery, with proportionate cost and the insurer was **MACA.No.1390 OF 2007** **4** 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. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. 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 **MACA.No.1390 OF 2007** **5** 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. 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; |Head|Amount allowed<br>(in rupees)| |---|---| |Transportation to hospital|200/-| |Attendant expenses|2,000/-| |Extra nourishment|1,000/-| **MACA.No.1390 OF 2007** **6** |Damage to clothing|400/-| |---|---| |Treatment expenses|12,699/-| |Pain and suffering|14,000/-| |Discomfort and other<br>inconvenience|5,000/-| |Future treatment|5,000/-| |**Total**|**40,299/-**<br>fixed as Rs.40,500/-<br>in the award| 11. At the time of accident, the appellant was a minor aged 15 years. The document marked as Ext.A5 is the wound certificate and Ext.A6 is the discharge summary. As per medical records, in the accident, the appellant sustained abrasion left leg lower and lacerated ½ inch wound medial side of left lower leg, oblique fracture both bones left leg middle 3[rd] . On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 20 days. 12. The document marked as Ext.A7 is the disability certificate issued by an individual doctor. In Ext.A7, the percentage of disability, on account of the injuries sustained in the accident, is assessed as 9%. As per Ext.A7 there is malunion of tibia (L). The Tribunal did not accept the disability assessed in Ext.A7 on the ground that the doctor was not examined and that, the assessment of disability **MACA.No.1390 OF 2007** **7** was made with implant in situ. Since there is malunion of tibia, considering the nature of disabilities noted in Ext.A7, the percentage of disability can be reasonably taken as 4% for the purpose of granting disability compensation. 13. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC 396]** , the Apex Court laid down the principles regarding payment of compensation for injuries sustained by children, resulting permanent disability. In the said decision, the Apex Court held that in the case of children suffering disability on account of motor accident, the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick. Paragraph 12 of the said decision reads thus; “12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor **MACA.No.1390 OF 2007** **8** vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalisation for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:- |follows:-|| |---|---| |Head|Compensation<br>amount| |Pain and suffering already undergone<br>and to be suffered in future, mental and<br>physical shock, hardship, inconvenience<br>and discomforts and loss of amenities in<br>life on account of permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the<br>period of hospitalisation.|Rs.25,000/-| |Medical and incidental expenses during<br>the period of hospitalisation for 58 days.|Rs.25,000/-| |Future medical expenses for correction<br>of the malunion of fracture and<br>incidental expenses for such treatment.|Rs.25,000/-| |**TOTAL:-**|**Rs.3,75,000/-**| 14. Going by the law laid down by the Apex Court in **MACA.No.1390 OF 2007** **9** **Master Mallikarjun's case (supra)** , for permanent disability up to 10%, the compensation under the head _pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life on account of permanent disability_ shall be Rs.1,00,000/-. In the instant case, considering malunion of tibia (L) and the nature of disabilities noticed in Ext.A7, the percentage of disability of the appellant is taken as 4%. Therefore, the appellant is entitled for a sum of **Rs.1,00,000/-** as compensation under this head. 15. In **Mallikarjun's case** , the injured had undergone inpatient treatment for a period of 58 days. Therefore, under the head _discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation_ , the Apex Court awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the inpatient treatment the appellant had undergone for 20 days, a sum of **Rs.12,500/-** can be granted as compensation under this head. 16. In **Mallikarjun's case** , under the head _medical_ **MACA.No.1390 OF 2007** **10** _and incidental expenses during the period of hospitalisation_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, Ext.A8 series of medical bills are for Rs.12,698.03/-. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.25,000/-** . 17. In **Mallikarjun's case** , under the head _future medical expenses for correction of the malunion of fracture and incidental expenses for such treatment_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, as per Ext.A7 disability certificate, there is malunion of fracture and requirement for future treatment. Therefore, the appellant is entitled for a sum of **Rs.25,000/-** under this head. 18. In the result, the total compensation in O.P. (MV)No.1419 of 2001 is re-fixed as Rs.1,62,500/(1,00,000 + 12,500 + 25,000 + 25,000) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,22,000/-** (Rupees One lakh and twenty two thousand only) [1,62,500 – 40,500] in this appeal, which will carry interest at the rate of 8% per **MACA.No.1390 OF 2007** **11** 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 granted in this appeal shall be made to the appellant/claimant as per 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/20/12