Rajathilakan v. A.K. Anto and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** **MACA.No.2913 OF 2008** **AGAINST THE AWARD IN OP(MV) No.1504/2002 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR** ## **APPELLANT/S:** **RAJATHILAKAN, S/O. KUTTAPPAN, THONIPARAMBIL HOUSE, KUNDUVARA.P.O, CHEMBUKAVU, THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.CHANDRA MOHAN SRI.T.A.SHAIN** ## **RESPONDENT/S:** - **1 A.K.ANTO, S/O KOCHAPPAN ARAKKAPARAMBIL HOUSE,, LOURDPURAM.P.O, EAST FORT, THRISSUR.** - **2 BLASSAN SO. JOSEPH VADAKKEPARAMBIL HOUSE,, ANJADKIKKAN, CHENGANNUR,, ALAPPUZHA DISTRICT (NOW RESIDING AT C/O. MANI,, BEHIND MOOKAMBILA WORK SHOP, OLARIKKARA)( DELETED)** **R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DTD.24.01.2014 IN IA 190/14 IN MACA 2913/2008 3 UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, KURUPPAM ROAD,, THRISSUR. R1 BY ADV. SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 2913 of 2008 -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1504 of 2002 on the file of the Motor Accidents Claims Tribunal, Thrissur, 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 15.02.2002, while he was riding a motorcycle. At the place of accident, the motorcycle was hit by a scooter bearing registration No.KL-8/F-5084 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of scooter by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,23,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner of the scooter filed written statement contending that the accident occurred due to the rash and negligent riding of the motorcycle by the appellant and not on account of any negligence on the side of the 2[nd] respondent rider of the scooter. MACA No. 2913 of 2008 -3- 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the scooter involved in the accident; however, denying negligence alleged against its rider. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A10 were marked on the side of the appellant/claimant. The doctor who issued Ext.A7 disability certificate was examined as PW1. On the side of the respondents, a copy of the insurance policy of the offending vehicle was marked as Ext.B1 _._ 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 riding of the scooter by its 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.79,360/-, together with interest at the rate of 7% per annum from the date of petition, i.e., 24.06.2002 till date of actual payment, with proportionate cost, and the 3[rd] respondent insurer was directed to satisfy the MACA No. 2913 of 2008 -4- 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 and also the learned Standing Counsel for the 2[nd] 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 MACA No. 2913 of 2008 -5- 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 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; |Loss of earning|16,857/-| |---|---| |Expense for transportation|1,000/-| |Expense for extra nourishment|1,000/-| |Damages to clothing|500/-| |Expense for treatment|24,400/-| MACA No. 2913 of 2008 -6- |Expense for bystander|400/-| |---|---| |Compensation for pain and suffering|12,000/-| |Compensation for loss of amenities|8,000/-| |Compensation for discomfiture|15,000/-| |--------------------|| |Total|79,357/-| |===========|| 12. The accident occurred on 15.02.2002. At the time of accident, the appellant was Head Constable, earning a monthly income of Rs.8,505/-. The document marked as Ext.A10 is the salary certificate, as per which, at the time of accident, the appellant was drawing a monthly salary of Rs.8,505/-. 13. The document marked as Ext.A2 is the wound certificate and Ext.A7 is the discharge summary. As per medical records, in the accident, the appellant sustained type 1 open compound fracture both bone left forearm, abrasion left hand, contusion left forearm, undisplaced crack fracture medial malleolus left ankle, puncture wound dorsum of left forearm and multiple bodily injuries. He had undergone inpatient treatment for a period of 5 days. Ext.A8 series of medical bills are for a sum of Rs.24,379/-. The Tribunal awarded a sum of Rs.24,400/- towards medical expenses. 14. The document marked as Ext.A7 is the disability MACA No. 2913 of 2008 -7- certificate issued by PW1, in which the permanent disability of the appellant, on account of the injuries sustained in the accident is assessed as 12%. The Tribunal did not accept the assessment of disability in Ext.A7, stating that the evidence of PW1 cannot be acted upon. Considering the nature of injuries sustained and the disabilities noted in Ext.A7, this Court deem it appropriate to take the permanent disability of the appellant, on account of the injuries sustained in the accident, as 6%, for the purpose of awarding compensation under various heads. 15. Towards loss of earning, the Tribunal awarded a sum of Rs.16,857/-, the amount covered by Exts.A9 and A10 for 39 days earned leave and 45 days half-pay leave. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 16. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 5 days. The accident is of the year 2002. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and MACA No. 2913 of 2008 -8- the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,000/-** (2,000 – 1,000). 17. Towards bystander expenses the Tribunal awarded a sum of Rs.400/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 5 days. 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 extra nourishment represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head bystander's expense is re-fixed as Rs.750/- (150 x 5), resulting an additional compensation of **Rs.350/-** (750 - 400). 18. 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 MACA No. 2913 of 2008 -9- compensation of **Rs.250/-** (750 – 500). 19. Towards medical expenses, the Tribunal awarded a sum of Rs.24,400/-, covered by Ext.A8 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. 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.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 – 12,000). 21. The Tribunal awarded no compensation under the head permanent disability. The permanent disability of 6% taken by this Court will have no bearing on the earning capacity of the appellant while the appellant is in service as Head Constable. However, the said disability will have an adverse impact on his earning capacity after his retirement. Therefore, the appellant can be granted compensation under MACA No. 2913 of 2008 -10- the head permanent disability by taking Rs.4,252/- (50% of his monthly salary of Rs.8,505/-) as his notional monthly income after retirement; taking multiplier of 9 applicable to the age group of 56 to 60 years; and the percentage of permanent disability as 6%. In the result, the appellant is granted as sum of **Rs.27,552/-** (4252 x 12 x 9 x 6/100) under the head permanent disability. 22. Towards loss of amenities the Tribunal awarded a sum of Rs.8,000/-. The Tribunal awarded a further sum of Rs.15,000/- under the head discomfiture. Considering the nature of injuries sustained and 6% permanent disability on account of those injuries, as taken by this Court, the compensation under the head loss of amenities is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.2,000/-** (10,000 – 8,000). Once the appellant is granted compensation under the head loss of amenities for the disabilities, inconveniences, discomfiture, etc. for the rest of his life consequent to the permanent disability suffered by him, he is not entitled for award of separate compensation under the head discomfiture. Therefore, **Rs.15,000/-** awarded by the Tribunal as compensation under the head MACA No. 2913 of 2008 -11- discomfiture is an **excess payment** , which has to be deducted from the additional compensation granted in this appeal. 23. The Tribunal awarded no compensation under the head future medical expenses. Considering the fact that the appellant has to undergo surgery for implant removal, he is granted a sum of **Rs.15,000/-** under the head future medical expenses, which will carry no interest. 24. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.34,152/-** (Rupees thirty four thousand one hundred and fifty two only) [(1,000 + 350 + 250 + 3,000 + 27,552 + 2,000 + 15,000) - 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding Rs.15,000/- granted under the head future medical expenses. 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. The disbursement of MACA No. 2913 of 2008 -12- additional compensation to the appellant/claimant shall be made taking note of the law on the point and 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 provide 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** das