RUKIYA v. NEW INDIA ASSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 08TH DAY OF NOVEMBER 2019 / 17TH KARTHIKA, 1941** ## **MACA.No.672 OF 2016** **AGAINST THE AWARD IN OPMV 2411/2004 DATED 24-05-2008 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER :** **RUKIYA AGED 19 YEARS D/O HASSANKUTTY, RESIDING AT KILIYANTHODIYIL HOUSE, P.O PUTHUPPADY, KOZHIKODE** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/2ND RESPONDENT :** **NEW INDIA ASSURANCE CO.LTD SILVER PLAZA, I.G. ROAD, KOZHIKODE-673 001** **R BY ADV. SMT.M.HEMALATHA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.672 OF 2016** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2411 of 2004 on the file of the Motor Accidents Claims Tribunal, Kozhikode, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant, in a motor accident, which occurred on 17.11.2004. At the place of accident, the appellant/claimant, who was a pedestrian, was knocked down by a motorcycle bearing registration No.KL-11/T-5086 owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,25,000/-, under various heads. Since the appellant/ claimant was a minor aged 7 years, in the claim petition, she was represented by her father. 2. Before the Tribunal, the 1[st] respondent/owner-cumrider of the motorcycle remained absent and he was set ex- **MACA.No.672 OF 2016** **3** parte. 3. The 2[nd] respondent/insurer filed written statement admitting insurance coverage of the offending motorcycle; however, denying the negligence alleged against the 1[st] respondent owner-cum-rider. 4. Before the Tribunal, Exts.A1 to A6 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 riding of the offending motorcycle by the 1[st] respondent rider. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.15,400/- and the insurer was directed to satisfy the award, together with interest at the rate of 7.5% per annum from 09.12.2004 with a cost of Rs.150/-. The insurer was directed to satisfy the award within 30 days. **MACA.No.672 OF 2016** **4** 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 **MACA.No.672 OF 2016** **5** 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 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; **MACA.No.672 OF 2016** **6** |Heads|Amount allowed| |---|---| |Medical Bills|1,400/-| |Incidental charges|3,000/-| |Pain and sufferings|7,000/-| |Loss of amenity|3,000/-| |Transportation|1,000/-| |Total|15,400/-| 12. The document marked as Ext.A2 is the wound certificate: Ext.A3 is the patient's index card; Ext.A4 is the CT Scan report and Ext.A6 is the medical bills. Ext.A5 is the certificate issued by the Headmaster of AKTMLP School, Manalvayal certifying that on account of the injuries sustained in the accident, the appellant could not attend class from 17.11.2004 and she had lost one academic year. Ext.A2 wound certificate showed haemorrhage contusion on frontal bone and comminuted fracture of parietal bone and fracture on orbit or (R) eyeball and maxilla. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. 13. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2004 and also the nature of injuries **MACA.No.672 OF 2016** **7** sustained and 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) under this head. 14. The Tribunal awarded no amount towards Bystander's expenses and extra nourishment. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.1,200/-** (150 x 8) under the head bystander's expenses and a further sum of **Rs.800/-** (100 x 8) towards extra nourishment. 15. Towards medical expenses, the Tribunal awarded a sum of Rs.1,400/-, covered by Ext.A6 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. 16. As compensation towards pain and suffering, the **MACA.No.672 OF 2016** **8** Tribunal awarded a sum of Rs.7,000/-. Considering the nature of injuries sustained by the appellant at an age of 7 years 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.8,000/-** (15,000 - 7,000). 17. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.4,500/-** (7,500 - 3,000) under this head. 18. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.15,500/-** (Rupees Fifteen thousand and five hundred only) [1,000 + 1,200 + 800 + 8,000 + 4,500] 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 delay of 2566 days, which was condoned vide order dated 17.01.2017 in **MACA.No.672 OF 2016** **9** C.M.Appln.No.822 of 2016, subject to the condition that in case any enhancement is granted, such amount will not carry interest with respect to the said days. The 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. 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.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/16/11