New India Assurance Co. Ltd. v. Krishna Kumar and Lekshmi Narayanan Fantassia

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** ## **MACA.No.1928 OF 2008** **AGAINST THE AWARD IN OP(MV) No.1750/2001 DATED 18-04-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE CO.LTD. ALAPPUZHA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/S:** **1 N.KRISHNAKUMAR, S/O. NAGENDRAN, SREEKRIPA, KAYAMKULAM.** - **2 N. LEKSHMI NARAYANAN FANTASSIA, PAZHAVANGADI,, THIRUVANANTHAPURAM.** - **3 P. SATHEESHKUMAR SWAMEES, MULLACKAL, ALAPPUZHA. (DELETED)** **(R3 DELETED AT THE RISK OF APPELLANT VIDE ORDER DATED 04.03.2020 IN MACA -1928/2008)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1928 of 2008 -2- ## **JUDGMENT** The appellant is the 3[rd] respondent insurer in O.P. (MV)No.1750 of 2001 on the file of the Motor Accidents Claims Tribunal, Alapuzha, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, by the 1[st] respondent/claimant, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 08.03.2001, while he was travelling in a maruti car bearing registration No.KL01/N-8181 owned by the 2[nd] respondent, driven by the 3[rd] respondent (who has already been deleted from the party array by the order dated 04.03.2020), and insured with the appellant. At the place of accident, the car hit on the left rear side of a bus bearing registration No.TN-37/163 and the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by its driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.9,62,750/- under various heads. 2. The Tribunal by the impugned award held that the accident occurred due to the rash and negligent driving of car by its driver. Since the said vehicle was covered by a valid MACA No.1928 of 2008 -3- insurance policy, the appellant insurer was held liable to indemnify the insured. Under various heads the Tribunal awarded a total compensation of Rs.6,17,000/- together with interest at the rate of 7.5% from the date of petition, till realisation, with a cost of Rs.6,000/-. 3. Disputing the liability, by contending that the accident occurred solely due to the rash and negligent driving of the bus by its driver, and challenging the quantum of compensation awarded by the Tribunal under various heads, the appellant insurer is before this Court in this appeal. 4. Heard the learned Senior Counsel for the appellant insurer. Despite service of notice, none appears for the 1[st] respondent/claimant and the 2[nd] respondent/owner of maruti car. The 3[rd] respondent/driver of maruti car has already been deleted from the party array. 5. The issues that arise for consideration in this appeal is as to whether the finding of the Tribunal on the question of negligence can be sustained in law; and whether the compensation awarded by the Tribunal under various heads are on the higher side. MACA No.1928 of 2008 -4- 6. Before the Tribunal, the appellant insurer filed written statement, contending that, the accident occurred due to the rash and negligent driving of the bus by its driver and not on account of any rash and negligent driving of the car by its driver. The insurer has also raised a contention that, the alleged accident did not occur at all, and the claim petition has been filed in collusion with the 2[nd] respondent owner of the maruti car. 7. The document marked as Ext.A1 is a copy of the FIR (in Tamil) in the Crime No.133/2001 of Sulur Police Station, registered against the driver of the maruti car, in connection with the motor accident which occurred on 08.03.2001. The document marked as Ext.A2 is its English translation. The document marked as Ext.A3 series are the AMVI reports of the maruti car and bus involved in the accident. As per Ext.A3 series of AMVI reports, rear left side of the bus and the front portion of the maruti car are damaged. The front body of the maruti car was fully damaged. A reading of the impugned award would make it clear that, before the Tribunal, insurer did not dispute the damages caused to both MACA No.1928 of 2008 -5- the vehicles, as shown in the AMVI reports. The nature of the damages caused to the maruti car and to the bus prima facie show that, at the place of accident, the car hit on the left rear side of a bus. Ext.A3 series of AMVI reports are prima facie sufficient evidence of negligence on the part of the driver of the maruti car (against whom the police has registered a crime, as evident from Ext.A1 FIR), for the purpose of a claim under Section 166 of the Motor Vehicles Act. In the absence of any evidence to the contra, the Tribunal rightly held that the accident occurred due to the rash and negligent driving of the maruti car by its driver. 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 MACA No.1928 of 2008 -6- 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. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; Compensation for loss of earning Rs. 40,000/Cost of medicine and treatment charges Rs.2,60,500/- MACA No.1928 of 2008 -7- |Transportation charges<br>Rs. 82,700/-| |---| |Bystander's expenses<br>Rs. 5,000/-| |Extra nourishment<br>Rs. 1,500/-| |Damage to clothing<br>Rs. 300/-| |Compensation for pain and sufferings<br>Rs. 25,000/-| |Compensation for loss of amenities<br>Rs. 10,000/-| |Compensation for permanent disability| |and loss of earning power<br>Rs.1,92,000/-| |--------------------| |Total<br>Rs.6,17,000/-| |=============| |11.<br>The accident occurred on 08.03.2001. At the time| |of accident, the 1strespondent/claimant was aged 36 years.| |He claimed a monthly income of Rs.13,500/- by conducting| |textile business. The document marked as Ext.A16 series are| |the Income Tax returns in 'Saral Form'. In the Saral Form| |dated 22.09.2001 for the period from 01.04.2000 to| |31.03.2001, the income of the claimant from business is| |shown as Rs.1,60,494/-. The claimant, who was examined as| |PW1, has admitted that he was conducting the textile shop| |'Kalpana Wedding Saree House', under the firm 'Kumar| |Trading Company'. The Tribunal noticed that, since the| |business was run by the firm, even in the absence of the| |claimant the firm would have been running the business.| MACA No.1928 of 2008 -8- Considering various aspects, the Tribunal took the monthly income of the claimant, notionally, as Rs.5,000/-, for the purpose of assessing compensation under various heads. The monthly income fixed by the Tribunal based on the materials on record and also the oral testimony of PW1 cannot be said to be on the higher side. 12. The document marked as Ext.A4 is the wound certificate; Ext.A5 series are the discharge summaries; and Ext.A6 series are treatment certificates. As per medical records, in the accident, the claimant sustained fracture of right femur with butterfly fragment; Type III fracture neck of right femur intracapsular; fracture right radius at the junction of the upper and middle third with ulna segmental fracture; fracture right talar process; and head injury with fracture nasal bone. As per Ext.A5 series of discharge summaries, the claimant had undergone inpatient treatment in different spells. He was treated by open reduction and internal fixation with dynamic compression plates (DC plates) and screws for right radius and ulna fracture. Neck of femur was stabilised with two screws and distal inter-locking was done with two MACA No.1928 of 2008 -9- screws. Nailing was done for fracture shaft of femur. On 31.07.2001, the claimant was admitted in the hospital on account of delayed union of shaft of right femur. Bone graft was harvested from right illiac crest and placed in the fracture site and impacted. He was discharged on 31.08.2001 with an advise to undergo physiotherapy to right hip, right knee and ankle. 13. The documents marked as Ext.A6 series are treatment certificates issued from Kovai Medical Centre and Hospital, Coimbatore, as per which, the claimant continued treatment as out patient in that hospital till 21.05.2004. Ext.A7 series are prescriptions and Exts.A8, A9 and A10 are scan reports. Ext.A11 series of medical bills are for a sum of Rs.1,80,945.70 and Ext.A12 series of receipts issued from that hospital are for a total sum of Rs.60,000/- towards Doctor's fee. 14. The Doctor who treated the claimant at Kovai Medical Centre and Hospital was examined as PW2, who deposed that, he was working in that hospital as an Orthopeadic Surgeon, who had treated the claimant and MACA No.1928 of 2008 -10- issued Ext.A5 series of discharge summaries and Ext.A6 series of treatment certificates. After the first phase of treatment as inpatient, he had advised claimant to undergo physiotherapy treatment at Home. The claimant started full weight bearing from the month of October, 2001 after a span of 7½ months. On 13.09.2002, PW2 had advised the claimant to take scan and from the scan report, it was found that avascular necrosis was formed. Subsequently, the claimant underwent surgery. Dead bones from the hip of his femur were removed and bone graft was harvested from the right illiac crest and placed in the fracture site and impacted. PW2 has deposed that from 13.09.2002 onwards, the claimant was immobalised again because of necrosis and total bed rest was advised. For nearly 1½ years, the claimant was not able to do any work. Ext.A12 series of receipts were issued from the Hospital regarding the fee received by PW2 and another doctor, which was in addition to the medical bills issued from that hospital. 15. As advised by PW2, the claimant underwent physiotherapy treatment at Jaya Physiotherapy Clinic, Muthukulam. The documents marked as Ext.A13 series are MACA No.1928 of 2008 -11- receipts for a total sum of Rs.19,500/- towards physiotherapy treatment. The Physiotherapist, who was examined as PW3, has deposed that the claimant underwent physiotherapy treatment at his clinic, who was issued with Ext.A13 series of receipts. The Tribunal allowed Rs.19,500/- covered by Ext.A13 series of receipts. 16. The documents marked as Ext.A15 series are taxi bills for a sum of Rs.82,665/- for the journey undertaken by the claimant from Kayamkulam to Coimbatore and for the return trips. The Tribunal found that, the dates mentioned in Ext.A15 series tally with the dates mentioned in Ext.A5 series and A6 series. Therefore, the Tribunal allowed Rs.82,665/covered by Ext.A13 series of taxi bills. 17. The document marked as Ext.A14 is the disability certificate issued by PW2, in which the permanent disability of the claimant, on account of the injuries sustained in the accident, is assessed as 30%. In Ext.A14 it is noticed that there is shortening of right femur by 1.5 cm, stiffness to hip joint and knee joint due to avascular necrosis of hip of femur. PW2 has deposed that consequent to avascular necrosis, the MACA No.1928 of 2008 -12- petitioner may require total hip replacement. There is no chance of reducing the disability. Since there is avascular necrosis, the percentage of disability may increase. PW2 has also deposed that the disability of the claimant will affect his earning capacity. The Tribunal took 20% permanent disability, considering the nature of disabilities. Since the claimant is a businessman, his personal attention is required for the business, which requires much travelling. Considering the nature of injuries sustained, the disabilities noted in Ext.A14 and also the oral testimony of PW2, the Tribunal took the loss of future earning capacity as 20%, for the purpose of assessing disability compensation, which cannot be said to be on the higher side. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.40,000/-, at the rate of Rs.5,000/-, for a period of 8 months. PW2 has deposed that the claimant started full weight bearing from the month of October, 2001, after a span of 7½ months. For nearly 1½ years, the claimant was not able to do any work. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out MACA No.1928 of 2008 -13- from medical records, and also the oral testimony of PWs.2 and 3, the compensation awarded by the Tribunal under this head cannot be said to be on the higher side. 19. Towards transportation to hospital, the Tribunal awarded a sum of Rs.82,700/-, covered by Ext.A15 series taxi bills. The Tribunal found that, the dates mentioned in Ext.A15 series tally with the dates mentioned in Ext.A5 series and A6 series. Therefore, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which cannot be said to be on the higher side. 20. Towards bystander expenses the Tribunal awarded a sum of Rs.5,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500/-. The accident is of the year 2001. As per the oral testimony of PW2, the claimant started full weight bearing after a span of 7½ months. For nearly 1½ years, he was not able to do any work. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under the above heads cannot be said to be on the higher side. MACA No.1928 of 2008 -14- 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.300/-. The accident is of the year 2001. The compensation awarded by the Tribunal under this head cannot also be said to be on the higher side. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.2,60,500/-, covered by Exts.A11, A12 and A13 series of bills, which were proved through PWs.2 and 3. Therefore, the compensation awarded by the Tribunal under this head also represents just and reasonable compensation, which cannot be said to be on the higher side. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. As per Ext.A5 series of discharge summaries, the claimant had undergone inpatient treatment in different spells, who was treated by open reduction and internal fixation with dynamic compression plates and screws for right radius and ulna fracture. Neck of femur was stabilised with two screws and distal inter-locking was done with two screws. Nailing was done for fracture shaft of femur. On account of delayed union of shaft of right femur, bone graft was harvested from right illiac crest and placed in MACA No.1928 of 2008 -15- the fracture site and impacted. He had also undergone physiotherapy to right hip, right knee and ankle. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out from medical records and also the oral testimony of PWs.2 and 3, the compensation awarded by the Tribunal under this head cannot also be said to be on the higher side. 24. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,92,000/- (5,000 x 12 x 16 x 20/100). As already found, in this appeal, the notional monthly income of Rs.5,000/- fixed by the Tribunal, based on the materials on record and also the oral testimony of PW1, and 20% loss of future earning capacity taken by the Tribunal, considering the nature of injuries sustained, the disabilities noted in Ext.A14 and also the oral testimony of PW2, cannot be said to be on the higher side. Therefore, the compensation awarded by the Tribunal under the head permanent disability, represents just and reasonable compensation, which requires no interference in this appeal. 25. Towards loss of amenities the Tribunal awarded a MACA No.1928 of 2008 -16- sum of Rs.10,000/-. Considering the nature of injuries sustained and 20% permanent disability on account of those injuries, as taken by the Tribunal, the compensation awarded by the Tribunal under this head cannot also be said to be on the higher side. In the result, this appeal fails and the same is accordingly dismissed. No order as to costs. **Sd/-** **ANIL K. NARENDRAN JUDGE** das