RIYAS v. P.N. SHINOSH; K.T. JOY; UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** ## **MACA.No.89 OF 2009** **AGAINST THE AWARD IN OP(MV)No. 1079/2002 DATED 19-07-2007 OF SPECIAL COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/S:** **RIYAS,AGED 20 YRS.S/O. MUHAMMED HANEEFA, UMMATHANTHOPPU HOUSE,, ETHANUR P.O., KODUVAYOOR (VIA), PALAKKAD DIST.** **BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SMT.VINAYA V.NAIR RESPONDENT/S: 1 P.N.SHINOSH, S/O. NARAYANAN, PULIKKAL HOUSE, VALANJUPPADAM,, CHENGLOOR P.O., THRISSUR DIST. 2 K.T. JOY S/O. THOMAS KOLAPRAN HOUSE, VELUPADAM P.O,, MUKUNDAPURAM TALUK, THRISSUR DIST. [DELETED] [SECOND RESPONDENT IS DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 07.11.2017 IN IA NO.3925/17 IN MACA 89/2009]. 3 UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, ALENGADAN BUILDINGS,, TANA, IRINJALAKUDA.** **R1, R3 BY ADV. SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 89 of 2009 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1079 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, at the age of 14 years, in a motor accident, which occurred on 19.04.2002, while he along with others were travelling in an autorickshaw bearing Reg.No.KL-9/K1413. At the place of accident the autorickshaw was hit by a lorry bearing Reg.No.KRR-6987, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by its 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 1[st] respondent did not file any written statement. The 2[nd] respondent remained absent and he was set ex parte. -3- MACA. No. 89 of 2009 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the accident; however, denying negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and negligent driving of autorickshaw by its driver. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with the connected cases. On the side of the claimants, Exts.A1 to A21 were marked. Exts.A16 and A20 are disability certificates marked through PW1, in which permanent disability of the appellant, on account of the injuries sustained in the accident, was assessed as 60%. The Tribunal took the percentage of permanent disability as 40%. 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 lorry by its driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the -4- MACA. No. 89 of 2009 insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,73,000/-, together with interest at the rate of 7% per annum from the date of petition till actual payment, with proportionate cost, and the 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 and also the learned Standing Counsel for the 3[rd] 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 -5- MACA. No. 89 of 2009 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 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 -6- MACA. No. 89 of 2009 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; |**Heads**|**amount**| |---|---| |Expense for transportation|2000| |Expense for extra nourishment|1500| |Damages to clothing|500| |Expense for treatment|53250| |Expense for bystander|2750| |Compensation for pain and suffering|15000| |Compensation for disability|90000 15,000x15x 40%| |Compensation for loss of amenities|8000| |-------------------|| |total|1,73,000| |===========|| 12. The accident occurred on 19.04.2002. At the time of accident, the appellant was aged 14 years, who was studying in 7[th] standard. Since the appellant was a nonearning member, the Tribunal took his annual income as Rs.15,000/-, as per Second Schedule to the Motor Vehicles Act. In the accident, he sustained fracture P/3 right humerus, fracture left femur shaft, inter condylar, fracture right femur and diffuse axonal injury, as evident from Ext.A2 wound -7- MACA. No. 89 of 2009 certificate. He had undergone impatient treatment for 22 days. Ext.A10 medical bills are for a total sum of Rs.53,230/-. The Tribunal awarded a sum of Rs.53,250/- under this head. 13. On 28.10.2019, when this appeal came up for consideration, this Court directed the appellant to appear before the Medical Board at the Medical College Hospital, Thrissur, in order to assess his permanent disability. Pursuant to the said order, the appellant appeared before the Medical Board and the report of the Disability Assessment Board at Medical College, Thiruvananthapuram dated 20.11.2019 is placed on record along with a memo filed by the learned Government Pleader dated 25.11.2019, as per which the permanent whole body disability of the appellant is assessed using the combination formula as 77.1%. The learned Standing Counsel for the 3[rd] respondent insurer was granted time to get instructions on the said disability certificate. The insurer has not raised any objections on the assessment of disability by the Medical Board. Considering the nature of injuries sustained and the disabilities noted in the disability -8- MACA. No. 89 of 2009 certificate dated 20.11.2019, the permanent whole body disability of the appellant is taken as 77.1%, as assessed by the Medical Board. 14. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could -9- MACA. No. 89 of 2009 not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a monthly notional income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meagre an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement -10- MACA. No. 89 of 2009 she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** -11- MACA. No. 89 of 2009 that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 15. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. -12- MACA. No. 89 of 2009 16. 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 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.3,00,000/-; up to 60%, Rs.4,00,000/-; up to 90%, Rs.5,00,000/- and above 90%, it should be Rs.6,00,000/-. For permanent disability up to 10%, it should be Rs.1,00,000/-, unless there are exceptional circumstances to take a different yardstick. 17. Considering the facts and circumstances of the case on hand, in the light of the law laid down in the decisions referred to supra, the notional monthly income of the appellant, after adding 40% towards future prospects, in view of the law laid down by the Apex Court in **National** -13- MACA. No. 89 of 2009 ## **Insurance Company Ltd. v. Pranay Sethi [(2017) 16** **SCC 680]** , can be taken as Rs.3,620/-, for the purpose of awarding disability compensation, in order to ensure that the appellant with 77.1% permanent disability is granted a sum of Rs.5,00,000/- towards compensation under the head permanent disability. Therefore, the notional monthly income of the appellant for the purpose of awarding compensation under the head permanent disability is taken as Rs.3,620/-, after adding 40% towards future prospects. Applying the multiplier of 15 applicable to the age group of the appellant and the percentage of the permanent disability as 77.1%, the compensation under this head is re-fixed as Rs.5,02,383/(3,620 x 12 x 15 x 77.1/100), resulting an additional compensation of **Rs.4,12,383/-** (5,02,383 – 90,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 22 days. The accident is of the year 2002. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and -14- MACA. No. 89 of 2009 the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards bystander expenses the Tribunal awarded a sum of Rs. 2,750/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 22 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.3,300/- (150 x 22), resulting an additional compensation of **Rs.550/-** (3,300 – 2,750). The compensation under the head extra nourishment is re-fixed as Rs.2,200/- (100 x 22), resulting an additional compensation of **Rs.700/-** (2,200 – 1,500). 20. 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 -15- MACA. No. 89 of 2009 head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 – 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.53,250/-, covered by Ext.A10 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. 22. 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.30,000/-, resulting an additional compensation of **Rs.15,000/-** (30,000 – 15,000). 23. Towards loss of amenities, the Tribunal awarded a sum of Rs.8,000/-. In the disability certificate dated 28.10.2019 of the Medical Board, the permanent disability of the appellant, on account of the injuries sustained in the -16- MACA. No. 89 of 2009 accident, is assessed as 77.1%. Considering the nature of injuries and the disabilities noted by the Medical Board in the disability certificate dated 20.11.2019, the compensation under the head loss of amenities is re-fixed as Rs.80,000/-, resulting an additional compensation of **Rs.72,000/-** (80,000 - 8,000). 24. Considering the nature of disabilities, as borne out from the disability certificate dated 20.11.2019, the appellant is granted a sum of **Rs.50,000/-** towards loss of marriage prospects, and a further sum of **Rs.25,000/-** towards future treatment. The compensation awarded towards future treatment will not carry interest. 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.5,75,883/-** (Rupees five lakhs seventy five thousand eight hundred and eighty three only) [4,12,383 + 550 + 700 + 250 + 15,000 + 72,000 + 50,000 + 25,000] in this appeal, which will carry interest at the rate of **8%** per annum (excluding Rs.25,000/granted under the head future treatment expenses) from the -17- MACA. No. 89 of 2009 date of petition till realisation, excluding the period of delay of 358 days in filing this appeal, which was condoned by the order dated 29.11.2017, subject to the condition that in case any enhancement is granted in the appeal, the said amount will not carry interest for the period of delay. 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 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 -18- MACA. No. 89 of 2009 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. All pending interlocutory applications in this appeal are closed. Sd/- **ANIL K.NARENDRAN JUDGE** das