Sajid S/o Majeed v. C.A. Joy, Madhu P.P. and National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943** ## **MACA NO. 2295 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 2427/2005 OF MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** **SAJID S/O.MAJEED, KARAPURATH HOSUE, PERUMBIDIKUNNU,P.O.PAZHUVIL,THRISSUR DIST BY ADV SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 C.A.JOY S/O.ANTONY,CHALLISSERY HOUSE,P.O.PERINGOTTUKARA,THRISSUR-DIST680565** - **2 MADHU P.P. S/O.PADMANABHAN, PULIKKAL HOUSE, NATTIKA BEACH, THRISSUR DIST680565** - **3 NATIONAL INSURANCE COMPANY LTD AMBIKA ARCADE, M.G.ROAD, THRISSUR-680001 BY ADV SRI.K.B.RAMANAND SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **06.01.2022, THE COURT ON 01.02.2022 DELIVERED THE FOLLOWING:** M.A.C.A.No.2295 OF 2012 2 ## **JUDGMENT** This appeal is directed against the judgment in O.P. (M.V)No.2427/2005 on the file of the Motor Accidents Claims Tribunal, Thrissur. Appellant is the claimant in above O.P. (hereinafter be referred as the claimant). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation on account of the injury sustained by the claimant. 2. It is alleged that on 25.4.2005 at about 12 noon while the claimant was riding a bicycle through ThriprayarThrissur public road and reached at Pazhuvil, a bus bearing Registration No.KL-8/T 7479 dashed against the claimant's bicycle and thereby he fell down and sustained grievous injuries. Immediately he was taken to Medical College Hospital, Thrissur and treated there as inpatient for about 24 days. Thereafter he continued treatment at District Hospital, Thrissur as well as Jubilee Mission Hospital, Thrissur, in total, 64 days he had undergone inpatient treatment. M.A.C.A.No.2295 OF 2012 3 3. The accident alleged to have occurred due to the rash and negligent driving of the bus by the second respondent and he was under the employment of the first respondent, who is the owner of the vehicle. Third respondent is the insurer of the vehicle. 4. Before the Tribunal, respondents 1 and 2 remained exparte. Third respondent filed written statement admitting the policy coverage with respect to the vehicle involved in the accident. It is also contended that the accident happened due to the negligence of the claimant. It is also contended that first respondent has no valid vehicle records. The claimant was also put to strict proof regarding the age, income and quantum of compensation claimed in the petition. 5. There was no oral evidence from either side. Exts.A1 to A9 were marked from the side of the claimant. The Tribunal on evaluating all the materials produced from the side of the claimant as well as the pleadings found that the accident happened due to the negligence of the 2[nd] respondent and first respondent, the owner was held vicariously liable. The third respondent insurer is held M.A.C.A.No.2295 OF 2012 4 liable to make good the loss under the contract of insurance. Under various heads, the Tribunal awarded Rs.67,860/- with interest at the rate of 8% per annum. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the third respondent - Insurance Company. Lower Court Records were called for and perused. 8. The accident and liability of the 3[rd] respondent is not disputed and the only challenge is with regard to the quantum of compensation awarded under various heads. So the only point for consideration is whether the claimant is entitled for enhanced compensation. 9. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] general principles relating to compensation in injury cases has been dealt with in detail. It has been held that the provision of the Motor Vehicles Act, 1988 makes it clear that the award must be M.A.C.A.No.2295 OF 2012 5 just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 10. In State of Haryana & Anr. v. Jasbir Kaur & Ors. [(2003) 7 SCC 484] the Apex Court held that the Tribunal constituted under the Act as provided in Section 168 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 M.A.C.A.No.2295 OF 2012 6 same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. 11. 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 concept of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 12. In the present case, according to the learned counsel, claimant was initially hospitalized at Medical College Hospital, Thrissur for 25 days from 25.4.2005 to 11.5.2005. Thereafter he continued the treatment at M.A.C.A.No.2295 OF 2012 7 District Hospital, Thrissur from 12.08.2005 to 13.09.2005 for 30 days. Subsequently from 09.11.2005 to 14.11.2005 for 6 days he had undergone treatment at District Hospital. Again from 16.06.2009 to 18.06.2009 he undergone treatment at Jubilee Mission Medical College, Hospital Thrissur for three days. Exts.A6 and A7 would substantiate that contention. So, in total, he had undergone 64 days inpatient treatment. But adequate compensation under the head of bystander expenses has not been granted and it has been calculated only for 25 days. It is also his contention that though 15% permanent disability was sustained, the Tribunal arbitrarily limited the percentage of disability to 8%. He would also contend that being a student his monthly income was notionally fixed as Rs.1,500/-. That also is very low, according to him. 13. Learned counsel relies on Master Mallikarjun v. Divisional Manager, National Insurance Company Limited & Anr. [2013 ACJ 2445] wherein the Apex Court had occasion to consider the principles of assessment of compensation of children suffering form disability. It has been held therein that though it is difficult to have an accurate assessment of M.A.C.A.No.2295 OF 2012 8 the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that 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 upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In that case, the injured had a disability to the tune of 18% and he had undergone hospitalization for about two months causing inconvenience and loss of earning to the parents and in that context he was given a total compensation of Rs.3 lakhs towards pain and sufferings he had already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life on account of permanent disability. So it would go to show that the amount of Rs.3 lakhs was fixed under various heads like M.A.C.A.No.2295 OF 2012 9 pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts etc and loss of amenities in life on account of permanent disability. 14. In the case at hand, the permanent disability noted by the doctor attached to Department of Orthopedics, Government Medical College, Thrissur, where the injured initially undergone treatment is assessed as 15% wholebody disability. But the Tribunal reduced and adopted the disability as 8%. In this context the learned counsel relied on Manikantan v. Janardhanan Nair [2021 (6) KLT SN 32 (C.No.26)]. In that case, the disability certificate showed a permanent disability of 10%. But the Tribunal scaled down the disability to 8% for the sole reason that doctor was not examined. It was held to be not proper and further found that the Tribunal ought to have followed the procedure contemplated in paragraph No.12 of Raj Kumar's case [2011 (1) SCC 343 : 2010 KHC 5021] and the mandate of law under Rule 387 of the Kerala Motor Vehicles Rules, 1989. 15. In Rajkumar's case, paragraph No.12 would make M.A.C.A.No.2295 OF 2012 10 it clear that the Tribunal invariably should make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability and mere production of disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross examination with reference to the certificate. It also provides that if the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 16. Such a course was not adopted in the case in hand also. Apex Court in Raj Kumar’s case taking into account the distance of time of more than two decades, assessed the permanent disability based on the disability certificate issued instead of remanding the matter for doing complete justice to the party. Rule 387 of the Kerala Motor Vehicles Rules, 1989 also provides that the claims M.A.C.A.No.2295 OF 2012 11 Tribunal if it considers necessary, direct any medical officer in a Government Hospital or in a Medical College Hospital or any Board consisting of such Medical Officers to examine the injured and issue disability certificate indicating the degree and extent of the disability, if any, sustained as a result of the accident. So there is a duty cast upon the tribunal to get the doctor examined and ensure sufficient proof of the disability certificate produced from the side of the claimant. In this case the injuries sustained by the claimant are, intra articular supra condylar and inter condyler communited fracture right distal femur, haemarthrosis right, multiple bodily injuries. Ext.A8 the disability certifiable issued by the Associate Professor of Orthopedics, Government Medical College, Thrissur where the claimant initially undergone treatment for 25 days would describe the injury sustained by the claimant in detail with difficulties which is being faced by the injured and finally it is concluded that the claimant is having wholebody disability of 15% as per McBride Scale. 3% for rotational, 6% stiffness, 3% for wasting right thigh muscles with loss of one grade power 1.5% for pain and 1.5% for M.A.C.A.No.2295 OF 2012 **==> picture [15 x 8] intentionally omitted <==** shortening and osteoarthritis. The discharge cards produced from the side of the claimant also would prove that he had been hospitalized for 64 days in total. The claimant was a minor boy aged 16 years old and was a student. So I am also of the considered view that 15% whole body disability assessed by the Associate Professor of Orthopaedics attached to the Government Medical College Hospital, Thrissur ought to have been accepted by the Tribunal without reducing the percentage of disability at 8%. Hence, disability of 15% whole-body certified in Ext.A8 is accepted. 17. The claimant claimed enhanced compensation under the head of bystander expenses wherein the Tribunal has granted only Rs.3,750/-. It has been proved in evidence that he has undergone inpatient treatment for total 64 days. The accident was in the year 2005. So Rs.200/- per day can be taken as the bystander expenses. So, under the head of bystander expenses, the claimant is entitled to get compensation of 200x64=Rs.12,800/-. Deducting the amount already awarded, the enhanced compensation would be **Rs.9,050/** - [12800-3750]. The award of the M.A.C.A.No.2295 OF 2012 13 Tribunal also would show that no amount has been granted towards extra nourishment. The claimant undergone inpatient treatment for 64 days. Claimant was a 16 year old boy at the time of accident. Rs.2,000/- has been claimed towards extra nourishment. So an amount of **Rs.1,500/** - is awarded towards extra nourishment. No amount is also awarded towards damage to clothing. **Rs.500/-** claimed towards damage to clothing is seems to be reasonable. That also is hereby awarded. 18. It is also contended that towards pain and suffering only Rs.15,000/- was awarded though Rs.20,000/was claimed under that head. Towards permanent disability and loss of earning power, the amount awarded is Rs.25,920/- and Rs.12,000/- respectively. In the dictum in Mallikarjun's case the amount of Rs.3 lakhs is fixed in case of children suffering disability of above 10% and upto 30% and it also laid down the proposition that the amount of Rs.3 lakhs is fixed towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life on account of permanent disability. So once M.A.C.A.No.2295 OF 2012 14 that rule is adopted, the claimant cannot further claim separate compensation under the head pain and suffering or loss of earning power and loss of amenities. 19. So, in the present case, I have already found that the disability fixed at 15% as per Ext.A8 has to be adopted. If that be so, following the dictum laid down in Mallikarjuna's case, the claimant would be entitled to get total amount of Rs.3,00,000/- under the head of pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort etc. and loss of amenities in life on account of permanent disability. So further the claimant would not be entitled to get any amount towards loss of amenities and pain and suffering. So Rs.15,000/-, Rs.25,920/ and Rs.12,000/- awarded by the Tribunal towards pain and suffering, permanent disability and loss of amenities respectively have to be deducted, ie Rs.52,920/-. Under the head of pain and suffering, mental, physical shock etc, amount of compensation which the claimant is entitled to get is **Rs.2,47,080/** - [3,00,000-52,920]. Hence the total enhanced compensation would be Rs.2,58,130/- M.A.C.A.No.2295 OF 2012 15 [9,050+1,500+500+2,47,080]. 20. In the result, the appellant/claimant is entitled for payment of enhanced compensation of **Rs.2,58,130/-** (Rupees two lakhs fifty eight thousand one hundred and thirty only), which will carry interest at the rate of 7.5 **%** per annum from the date of petition till realisation. The **third 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 certified copy of this judgment, after deducting the liability, of the appellant/claimant towards Balance Court Fee. 21. The disbursement of additional compensation to appellant/claimant shall be made taking note of the law on the point and in terms of 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. Appellant/claimant 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 M.A.C.A.No.2295 OF 2012 16 copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA JUDGE** shg