P.T. Muhammed Musthafa v. T. Palani Sami & ors

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** # **MACA.No.1999 OF 2007** **AGAINST THE AWARD IN O.P.(MV) NO.664/2002 DATED 03-08-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/CLAIMANT:** **P.T.MUHAMMED MUSTHAFA, SON OF BAVAKUTTY, AGED 37 YEARS, THAYATTIL PARAMBATH HOUSE, P.O.MUTTANNUR,, MANGALAM, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.K.YUSUFF ISSUDDIN** ## **RESPONDENTS/RESPONDENTS:** - **1 T.PALANI SAMI, PREETHI HOUSE, 1/216, PUSHPAGIRI AGRAHARAM POONKUNNAM, THRISSUR DISTRICT.** - **2 NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, THRISSUR, AMBIKA ARCADE, M.G.ROAD, THRISSUR.** - **3 K.M.RAVEENDRAN, SON OF SANKARANKUTTY NAIR, KELLARATH MELETHIL HOUSE, P.O.KORATTIKKARA, THRISSUR DISTRICT.** - **4 UNITED INDIA INSURANCE COMPANY LIMITED, VADAKKANCHERY ROAD, KUNNAMKULAM, TRICHUR DISTRICT.** - **R2 BY ADV. SRI.E.M.JOSEPH R4 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1999 OF 2007** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.664 of 2002 on the file of the Motor Accidents Claims Tribunal, Tirur, 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 13.06.2002, while he was travelling in a bus bearing registration No.KL-7/W-3553, owned by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the said bus was hit by another bus bearing registration No.KL-8/K-5149, owned by the 3[rd] respondent and insured with the 4[th] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus bearing registration No.KL-7/W-3553 by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,37,500/- under various heads, which was limited to Rs.2,50,000/-, for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 3 remained absent and they were set ex-parte. The 2[nd] respondent insurer **MACA.No.1999 OF 2007** -3- filed written statement admitting insurance coverage of bus bearing registration No.KL-7/W-3553; however, denying negligence alleged against its driver. It was pointed out that the vehicle involved in the accident was having valid insurance with the 2[nd] respondent insurer. 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. The 4[th] respondent/insurer filed written statement admitting insurance coverage of bus bearing registration No.KL8/K-5149 involved in the accident. The insurer alleged negligence against the driver of bus bearing registration No.KL7/W-3553. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A38 were marked on the side of the appellant/claimant and he was examined as PW1. The respondents have not chosen to adduce any oral or documentary 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 bus bearing **MACA.No.1999 OF 2007** -4- registration No.KL-7/W-3553 by its driver. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,82,200/-, together with interest at the rate of 6% per annum from the date of petition till realisation, with a cost of Rs.2,000/-. The 2[nd] respondent 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, the learned Standing Counsel for 2[nd] and 4[th] respondents. Since insurance coverage of the offending vehicle is admitted by the 2[nd] respondent insurer, service of notice on the 1[st] respondent owner was dispensed with, by the order of this Court dated 30.09.2019. 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. **MACA.No.1999 OF 2007** -5- 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 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 **MACA.No.1999 OF 2007** -6- 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. The compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Compensation under various<br>heads|Amount<br>awarded| |---|---|---| |1|Transport to hospital|Rs. 5,000/-| |2|Damage to clothing|Rs. 500/-| |3|Expenses of bystander|Rs. 3,200/-| |4|Medical Bills|Rs. 1,18,000/-| |5|Extra nourishment|Rs. 3,000/-| |6|Loss of earnings|Rs. 27,500/-| |7|Pain and suffering|Rs. 15,000/-| |8|Loss of amenities|Rs. 10,000/-| ||**TOTAL**|**1,82,200/-**| 12. The accident occurred on 13.06.2002. At the time of accident, the appellant was aged 32 years. He claimed a monthly income of Rs.10,500/- as a Teacher in an L.P. School. 13. In Ext.A4 certificate issued by the school authorities, his gross salary as on 05.10.2002 was shown as Rs.6,296/-. Ext.A5 certificate would show that the appellant had taken half pay leave for the period from 14.06.2002 to 31.07.2002. Loss of salary for the said period comes to Rs.4,930/-, when the **MACA.No.1999 OF 2007** -7- gross salary is taken as Rs.6,296/-. Ext.A5 certificate would also show that the appellant had taken leave without allowances for a period of three months from 01.08.2002 to 31.10.2002. Loss of salary for this period comes to Rs.18,888/-. Ext.A35 certificate would show that the appellant had taken commuted leave for a period of 20 days from 15.02.2006 to 06.03.2006. Ext.A36 certificate would show that the appellant had taken leave without allowances for a period of 12 days from 05.06.2006 to 16.06.2006. His gross salary during that period was Rs.9,170/- per month. Loss of salary during the aforesaid period comes to Rs.3,667/-. Therefore, the Tribunal found that the total loss of earning of the appellant for the aforesaid periods comes to Rs.27,485/-, which was rounded off to Rs.27,500/-. 14. The document marked as Ext.A3 is the wound certificate issued from Amala Cancer Hospital and Ext.A6 is the medical certificate issued from that hospital. The document marked as Ext.A19 is the discharge summary. As per medical records, in the accident, the appellant sustained huge edema on the face bilaterally; lacerated wound on the vertical right side of the chin; lacerated wound on the right leg; fracture to **MACA.No.1999 OF 2007** -8- the right femur; fracture to the right mandible; fracture to the wall of both maxillary sinus; and fracture to the zygoma and lateral wall of the right orbit. Ext.A6 would show that he lost three teeth on the upper jaw and two teeth on the lower jaw. Ext.A19 discharge summary would show that the appellant was admitted in Amala Cancer Hospital, Thrissur on 13.06.2002 and he was discharged on 26.06.2002. As per Ext.A21 discharge summary, he was again admitted in the hospital on 05.05.2004 for removal of implants and that he was discharged on 08.05.2004. As per Ext.A28 discharge summary, he was again on 15.02.2006 and discharged on 17.02.2006. As per Ext.A33 discharge summary, he was admitted in the hospital on 03.05.2006 and discharged on 10.05.2006. As per Ext.A34 discharge summary, he was again admitted on 17.05.2006 and discharged on 19.05.2006. Exts.A8, A23 and A37 series of medical bills are for a total sum of Rs.1,04,300/-. The Tribunal noticed that some of the bills are for purchase of food from the canteen and bills for purchase of articles which are not connected with the treatment of the appellant. Those bills were not taken into consideration by the Tribunal. Exts.A9, A10 and A11 documents would show that the appellant spent an amount **MACA.No.1999 OF 2007** -9- of Rs.5,760/- for physiotherapy. Ext.A13 document would show that an amount of Rs.8,000/- was spent for fixed permanent denture. After excluding bills which are inadmissible, the Tribunal awarded a total sum of Rs.1,18,000/- towards medical expenses. 15. Ext.A16 and Ext.A17 medical certificates were produced before the Tribunal along with I.A.No.2520 of 2003. As rightly noticed by the Tribunal, the basis of assessment of 30% permanent disability with respect to head and neck in Ext.A16 disability certificate dated 11.8.2003 issued by an Oral and Maxillofacial Surgeon at Amala Research Centre is not discernible from that document. In Ext.A16, it is certified that the appellant lost 5 teeth in the accident. He has facial asymmetry due to soft tissue injury. After assessing the appellant with regard to aesthetic loss and functional loss, the doctor assessed permanent disability of 30% with respect to head and neck. Ext.A17 is another disability certificate dated 21.07.2003 issued by the Consultant Orthopedic Surgeon at Amala Research Centre, wherein it is certified that the appellant, who had suffered fracture of right femur and cramofacien injuries, is having a permanent disability of 10% **MACA.No.1999 OF 2007** -10- with regard to his lower limb. The appellant was examined before the Tribunal as PW1, who has deposed that he has difficulty to walk. In the absence of any reliable materials to prove permanent disability, the Tribunal awarded a consolidated sum of Rs.10,000/- under the head loss of amenities, without granting any compensation under the head permanent disability. The appellant has not taken steps to prove the disability certificates by examining the doctor concerned. In the absence of reliable materials to prove permanent disability, the appellant is not entitled for any compensation under this head. Moreover, any such permanent disability will have no bearing on the earning capacity of the appellant as an L.P.School Teacher, till his retirement from service. Considering the nature of injuries and the disabilities noted in Ext.A17, a consolidated amount of Rs.30,000/- is granted to the appellant under the head permanent disability, resulting an additional compensation of **Rs.20,000/-** (30,000 - 10,000). 16. Towards loss of earning, the Tribunal awarded a sum of Rs.27,500/-. 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 **MACA.No.1999 OF 2007** -11- under this head, based on Exts.A4, A5, A35 and A36 certificates, represents just and reasonable compensation, which requires no enhancement in this appeal. 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 32 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. 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.6,000/-, resulting an additional compensation of **Rs.1,000/-** (6,000 - 5,000). 18. Towards bystander expenses, the Tribunal awarded a sum of Rs.3,200/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,000/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 32 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs. 4,800/- (150 x 32), resulting an additional compensation of **Rs.1,600/-** (4,800 - 3,200). The compensation under the head extra nourishment is re-fixed as **MACA.No.1999 OF 2007** -12- Rs.3,200/- (100 x 32), resulting an additional compensation of **Rs.200/-** (3,200 - 3,000). 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2002, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.1,18,000/-, covered by admissible medical bills. In the absence of any further materials, the compensation awarded by the Tribunal represents just and reasonable compensation, which requires no enhancement in this appeal. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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.25,000/-, resulting an additional compensation of **Rs.10,000/-** (25,000 - 15,000). 22. Towards loss of amenities, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries **MACA.No.1999 OF 2007** -13- sustained and the disabilities stated by the appellant as PW1, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side. 23. In the accident, the appellant lost 5 teeth. Therefore, the appellant is granted a sum of **Rs.10,000/-** as compensation for loss of teeth. 24. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.43,050/-** (Rupees forty three thousand and fifty only) [20,000 + 1,000 + 1,600 + 200 + 250 + 10,000 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of 275 days of delay in filing this appeal which was condoned by order dated 30.9.2019 in C.M.Appl.No.2078 of 2007 on condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay. 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 **MACA.No.1999 OF 2007** -14- 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 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/csl