Narayanan v. Kalaivani and The New India Assurance Company Limited (MACA No.1523 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **MACA.No.1523 OF 2009** **AGAINST THE AWARD IN OPMV 546/2003 DATED 18-08-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** **NARAYANAN, S/O.VARIJAKSHAN, RESIDING AT EDAKKATTU HOUSE,PERUMPARACHALLA, KOZHINJAMPARA,, PALAKKAD.** **BY ADVS.** **SRI.P.S.APPU SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.A.R.NIMOD SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** - **1 SMT.KALAIVANI, S/O.MATHISEKAR, RESIDING AT 1/12,RATHINALAYAM, GOPALAPURAM, PALAKKAD.** - ***2 SAIDUNABI S/O.SAIDUMEER, RESIDING AT KRISHNA LANE, NEELIKKAD, PUDUSSERY,PALAKKAD (DELETED)** **(SECOND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DTD 12/2/19 IN IA NO.1/2019).** **3 THE NEW INDIA ASSURANCE COMPANY LIMITED SREE VALLI BUILDING,2ND FLOOR,ANIKODE JUNCTION, CHITTUR,PALAKKAD-678101.** ## **R1 BY ADV. SRI.K.C.SANTHOSHKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1523 OF 2009** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.546 of 2003 on the file of the Motor Accidents Claims Tribunal, Palakkad, 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 12.08.2000, while he was pedaling his bicycle. At the place of accident, the bicycle was hit by a bus bearing registration No.KLG-9151, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/-, under various heads. 2. Before the Tribunal, the owner and driver of the bus remained absent and they were set exparte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the bus involved in the accident; however, denying the negligence alleged against the 2[nd] **MACA.No.1523 OF 2009** 3 respondent driver. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A9 series were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral 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 bus by its driver. Since the 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.1,75,923/-, and the insurer was directed to satisfy the award, together with interest at the rate of 7.5% per annum, from the date of petition till date of realization, with a cost of Rs.500/-. 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 3[rd] **MACA.No.1523 OF 2009** 4 respondent/insurer. 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 deals with the concept of 'just compensation' and the same has **MACA.No.1523 OF 2009** 5 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|Amount<br>claimed|Amount<br>awarded| |---|---|---| |Transportation|15,000|10,000| |Extra nourishment|5,000|3,000| |Damage to articles|500|500| |Medical expenses|10,000|6,673| |Pain and suffering|50,000|25,000| |Permanent disability|2,50,000|1,12,500| |Loss of earning power|3,00,000|-| |Total||**1,75,923**| 12. At the time of accident, the appellant was a minor, aged 16 years. Ext.A4 is the wound certificate and Ext.A7 is the discharge certificate. As borne out from the medical records, the appellant sustained lacerated wound right upper limb extending **MACA.No.1523 OF 2009** 6 from the upper 3[rd] of the right arm to the distal wrist with degloving of the skin, entirely from the proximal portion of arm to the distal wrist, type III compound fracture right ulna with compound dislocation of the radial head, extensive soft tissue damage muscles and tenderness of the forearm with bones of the forearm exposed. There is laceration of the ulnar nerve and complete laceration of the ulnar artery. Radial artery and medium completely lacerated and divided. The muscles of the forearm superficial as well as deep were completely torn and devetalised with complete loss of vascularity. The muscles of the extensor aspect of the right forearm is also lacerated and partially devetalised below the level of the elbow joint. Radial and ulnar artery was completely lacerated and divided at the level of the elbow joint and laceration left eyelid. He had undergone inpatient treatment for a period of 50 days, under different spells. 13. In Ext.A7 disability certificate issued by the Assistant Professor of Orthopedics in the Medical College Hospital, Thrissur, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 60%. The said **MACA.No.1523 OF 2009** 7 disability certificate was not proved by examining the concerned doctor. After taking note of the schedule to Workmen's Compensation Act, 1923, the Tribunal found that the disability on account of the amputation on hand will only come to 60% as per the schedule. Therefore, the Tribunal took the percentage of disability as 50%, for the purpose of awarding compensation under he head permanent disability. 14. The Tribunal took the notional annual income of the appellant, for the purpose of assessing compensation under various heads, as Rs.15,000/-, applying the multiplier of 15 and percentage of disability as 50%, awarded a sum of Rs.1,12,500/as compensation for permanent disability and loss of earning power. 15. 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 **MACA.No.1523 OF 2009** 8 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 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:- **MACA.No.1523 OF 2009** 9 ||Head||Compensation|| |---|---|---|---|---| ||||amount|| ||Pain and suffering already undergone and||Rs.3,00,000/-|| ||to be suffered in future, mental and|||| ||physical shock, hardship, inconvenience|||| ||and discomforts and loss of amenities in|||| ||life on account ofpermanent disability.|||| ||Discomfort, inconvenience and loss of||Rs.25,000/-|| ||earnings to the parents during the period|||| ||of hospitalisation.|||| ||Medical and incidental expenses during||Rs.25,000/-|| ||theperiod of hospitalisation for 58 days.|||| ||Future medical expenses for correction of||Rs.25,000/-|| ||the malunion of fracture and incidental|||| ||expenses for such treatment.|||| ||**TOTAL:-**||**Rs.3,75,000/-**|| |16.<br>Going by the law laid down by|||the Apex Court in|| |**Master Mallikarjun's case (supra)**, for||permanent disability||| |up to|60%, 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, the permanent disability of||||| |the appellant assessed in Ext.A7 disability certificate is taken by||||| |the Tribunal as 50%. Therefore, the appellant is entitled for a||||| |sum of**Rs.4,00,000/-**as compensation under this head.||||| 17. In **Mallikarjun's case** , the injured had undergone **MACA.No.1523 OF 2009** 10 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 a period of 50 days, a sum of **Rs.25,000/-** can be granted as compensation under this head. 18. In **Mallikarjun's case** , under the head medical and incidental expenses during the period of hospitalisation, the Apex Court awarded a sum of Rs.25,000/-. In the instant case, Ext.A9 series of medical bills are for a sum of Rs.6,673/-. He had undergone inpatient treatment for 50 days, under different spells. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.25,000/-** . 19. 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, considering the nature of injuries noticed in Ext.A4 wound certificate and in Ext.A5 **MACA.No.1523 OF 2009** 11 discharge certificate and also the nature of disabilities noted in Ext.A7 disability certificate, the appellant is granted a sum of **Rs.25,000/-** under this head. 20. The injuries sustained by the appellant in the accident had resulted in disfiguration and loss of marriage prospects. Therefore, the appellant is granted a sum of **Rs.25,000/-** towards disfiguration and a further sum of **Rs.25,000/-** towards loss of marriage prospects. In the result, the total compensation in O.P.(MV)No.1451 of 2015 is re-fixed as Rs.5,00,000/- (4,00,000 + 25,000 + 25,000 + 25,000 + 25,000) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.3,24,077/-** (Rupees three lakhs twenty four thousand and seventy seven only) [5,00,000 – 1,75,923] 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 **MACA.No.1523 OF 2009** 12 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.D162475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** JV **JUDGE**