N. Vijayan v State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** ## **MACA.No.1030 OF 2007** **AGAINST THE AWARD IN OPMV 741/1999 DATED 28-03-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR** ## **APPELLANT:** **N.VIJAYAN, KARUMANKODU, CHEMPOORU P.O., AVANAVANCHERI(VIA), THIRUVANANTHAPURAM.** **BY ADV. SRI.G.UNNIKRISHNAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY& OTHERS**| ||**BY THE CHIEF SECRETARY,**| ||**GOVT. SECRETARIAT,**| ||**THIRUVANANTHAPURAM.**| |**2**|**THE DIRECTOR GENERAL OF POLICE,**| ||**POLICE HEAD QUARTERS,**| ||**THIRUVANANTHAPURAM.**| |**3**|**RAJAN PANATHARA VEEDU,**| ||**CHERIYIL DESOM, MULAVANA,,**| ||**PADAPPAKKARA P.O., KOLLAM.**| |**4**|**THE DIVISIONAL MANAGER,**| ||**UNITED INDIA INSURANCE CO.LTD.,**| ||**IIND FLOOR, S.K.P.BUILDING,**| ||**BEACH ROAD, KOLLAM.**| |**5**|**LAL ABRAHAM,**| ||**RAJANGIRI ESTATE P.O.,**| ||**ERUMELY.**| |**6**|**S.RAJU,**| ||**CHARUVILA PUTHEN VEEDU,**| ||**CHADAYAMANGALAM P.O.,**| ||**KOLLAM.**| **MACA.No.1030 OF 2007** -2- |**7**|**RAJENDRAN PILLAI,**| |---|---| ||**CHARUVILA PUTHEN VEEDU,**| ||**ERAM, ANCHAL.**| |**8**|**THE DIVISIONAL MANAGER,**| ||**ORIENTAL INSURANCE CO. LTD.,**| ||**DIVISIONAL OFFICE,**| ||**P.B.NO.228,, L.I.C.BUILDING,**| ||**3RD FLOOR,, CHINNAKKADA,**| ||**KOLLAM.**| |**R4**|**BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU**| |**R8**|**BY ADV. SRI.GEORGE CHERIAN (SR.)**| |**R8**|**BY ADV. SMT.K.S.SANTHI**| |**R8**|**BY ADV. SMT.LATHA SUSAN CHERIAN**| ||**SRI.MURALIDHARAN B.R., GOVERNMENT PLEADER**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1030 OF 2007** -3- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.741 of 1999 on the file of the Motor Accidents Claims Tribunal, Punalur, which is 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 08.10.1998, while he was travelling in a car bearing registration No.KL-01/F-579, owned by the 2[nd] respondent, driven by the 3[rd] respondent and insured with the 4[th] respondent. When the car reached the place of accident, it was hit by a jeep bearing registration No.KL-05/A-3088 owned by the 5[th] respondent, driven by the 7[th] respondent and insured with the 8[th] respondent. The 6[th] respondent is the insured of the jeep. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 3[rd] respondent driver and the jeep by the 7[th] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner, the 3[rd] respondent driver of the car; and the 5[th] respondent owner **MACA.No.1030 OF 2007** -4- and the 6[th] respondent insured of the jeep remained absent and they were set ex-parte. The 4[th] respondent insurer of the car filed written statement admitting the accident; however denying the negligence alleged against its driver. The 8[th] respondent insurer of the jeep filed written statement admitting the policy coverage of the jeep; however, denying negligence alleged against its driver. It was also contended that the amount of compensation claimed is highly exorbitant. 3. Before the Tribunal, the appellant/claimant was examined as PW1. Exts.A1 to A18 were marked on the side his side. 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 driving of the motor car and jeep by respondents 3 and 7. Since the insurance coverage of the offending vehicles are not in dispute, respondents 4 and 8 were held liable to indemnify the insured of the respective vehicles. Under various heads, the Tribunal awarded a total compensation of Rs.38,184/- together with interest at the rate of 6% per annum from the date of petition **MACA.No.1030 OF 2007** -5- till realisation, with a cost of Rs.750/-. The liability of respondents 4 and 8 is apportioned in the ratio 50:50. 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, the learned Government Pleader for respondents 1 and 2, the learned Standing Counsel for the 4[th] respondent insurer and also the learned Standing Counsel for the 8[th] 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 **MACA.No.1030 OF 2007** -6- 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. 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. The compensation awarded by the Tribunal under various heads reads thus; **MACA.No.1030 OF 2007** -7- ## **Part I** |**Part I**||| |---|---|---| ||Amount<br>claimed|Amount<br>awarded| |Loss of earning 8.10.98 till 17.1.99|12,250|| |Transport to hospital|1,000|750| |Extra nourishment|5,000|750| |Damage to clothing & other articles|1,500|400| |Medical Expenses|10,000|| |Bystander expenses|7,650|1,800| ## **Part II** |**Part II**||| |---|---|---| |Compensation for pain & suffering|15,000|7,500| |Loss of amenities of life|75,000|26,984| |Compensation for loss of earning power<br>which includes loss of career prospectus due<br>to disability and post retirement life|1,25,000|| 11. The accident occurred on 08.10.1998. At the time of accident, the appellant was aged 35 years and he was a police constable, drawing a monthly salary of Rs.4,432/- as per Ext.A14 salary certificate and his net monthly salary was Rs.3,373/-. Ext.A13 leave certificate would show that he had availed a leave for a period of 102 days for the period from 08.10.1998 to 17.01.1999. The Tribunal awarded no compensation under the head loss of earning since the appellant is in service. 12. As per Exts.A2 to A6 referral O.P. cards issued from **MACA.No.1030 OF 2007** -8- Medical College Hospital, Thiruvananthapuram, the appellant sustained fracture on nasal bone, cut injury on left forehead and eyebrow, fracture 3[rd] metacarpal (r), fracture tibial tuberosity (r) and fracture lateral tibial condyle (r). The appellant was admitted on 08.10.1998. ORIF for fracture tibial tuberosity was done on 10.10.1998 and he was discharged on 19.10.1998. Ext.A10 is the treatment certificate issued from Government Dental College, Thiruvananthapuram. Ext.A11 is the treatment certificate issued from Government Ayurveda College Hospital, Thiruvananthapuram, which would show that he was admitted in that hospital on 05.08.2000 and discharged on 26.08.2000. He was admitted again on 31.07.2001 and discharged on 22.08.2001. Ext.A12 is the treatment certificate issued from Medical College Hospital, Thiruvananthapuram. In Ext.A16 disability certificate, the permanent disability of the appellant on account of the injuries sustained in the accident is assessed as 12% by Dr.R.Manoj Kumar, Assistant Professor of Orthopaedics, Medical College Hospital, Thiruvananthapuram. 13. Towards transportation to hospital, the Tribunal awarded a sum of Rs.750/-. Considering the fact that the **MACA.No.1030 OF 2007** -9- appellant had undergone inpatient treatment under different spells, as borne out from medical records, this Court deem it appropriate to re-fix the compensation under this head as Rs.2,000/-, resulting an additional compensation of **Rs.1,250/-** (2,000 - 750) . 14. Towards extra nourishment, the Tribunal awarded a sum of Rs.750/-. Considering the nature of injuries and the inpatient treatment the appellant had undergone for a period of 52 days, this Court deem it appropriate to re-fix the compensation under this head as Rs.5,200/- (100 x 52), resulting an additional compensation of **Rs.4,450/-** (5,200 - 750). 15. Towards bystander expenses, the Tribunal awarded a sum of Rs.1,800/-. The compensation under this head is refixed as Rs.7,800/- (150 x 52), resulting an additional compensation of **Rs.6,000/-** (7,800 - 1,800). 16. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.400/-. Considering the fact that the accident is of the year 1998, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.350/-** (750 - 400). **MACA.No.1030 OF 2007** -10- 17. Towards medical expenses, the appellant claimed a sum of Rs.10,000/-. In the absence of medical bills, the Tribunal rightly rejected the said claim made by the appellant under this head. 18. Towards permanent disability, no compensation was awarded by the Tribunal on the ground that Ext.A12 disability certificate was not proved and since the appellant suffered no loss of earning power, while in service. The disabilities noted in Ext.A16 disability certificate are limitation of terminal 15[o] flexion of right knee, wasting of 1 cm of thigh and calf muscles. He is not able to walk fast or run. He is not able to squat. The fracture of metacarpal has united with persistent pain on use of hand. Lowering of upper two medial incisor teeth, with difficulty in chewing solid food. Flattering of nose with scar on base with repeated blocking of nose. Considering the nature of disabilities noted in Ext.A16, the percentage of permanent disability can be notionally fixed as 10% for the purpose of granting disability compensation, applying the multiplier of 9 applicable to the age group of 56 to 60 years, taking a notional monthly income of Rs.3,000/-, since the disability noted in Ext.A16 will certainly have an adverse **MACA.No.1030 OF 2007** -11- impact on his earning power, after retirement. The Tribunal awarded a sum of Rs.26,984/- towards loss of amenities. Fixing the notional monthly income of the appellant after retirement from service as Rs.3000/-, applying the multiplier of 9; and the percentage of disability as 10%, the compensation under the head permanent disability is fixed as Rs.32,400/- (3,000 x 12 x 9 x 10/100). Considering the nature of disabilities noted in Ext.A16, the appellant can be granted a sum of Rs.15,000/- towards loss of amenities. After deducting a sum of Rs.26,984/- awarded by the Tribunal under the head loss of amenities, the appellant will be entitled for payment of an additional compensation of **Rs.20,416/-** [(32,400 + 15,000) - 26,984] under these heads. 19. Towards pain and suffering, the Tribunal awarded a sum of Rs.7,500/-. Considering the nature of injuries sustained, the treatment the appellant had undergone, as borne out from medical records and also the disabilities noted in Ext.A16, the compensation under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.7,500/-** (15,000 - 7,500). 20. In the result, the appellant will be entitled for **MACA.No.1030 OF 2007** -12- payment of an additional compensation of **Rs.39,966/-** (Rupees thirty nine thousand nine hundred and sixty six only) [1,250 + 4,450 + 6,000 + 350 + 20,416 + 7,500] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 4[th] and 8[th] respondents/insurers shall satisfy the additional compensation granted in this appeal, in the ratio 50:50, 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 the amount 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