SAMIL TAJ v. C.S. SURESH KUMAR and ORIENTAL INSURANCE COMPANY LIMITED

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 14TH DAY OF NOVEMBER 2019/23RD KARTHIKA, 1941** ## **MACA.No.2016 OF 2016** **AGAINST THE AWARD IN OP(MV)No.265/2013 DATED 20-02-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/PETITIONER:** **SAMIL TAJ, AGED 22, S/O. SHAMSUDHEEN, CHOOLOPARAMBIL VISTA HOUSE,HARIPAD P.O., ALAPPUZHA DISTRICT.** **BY ADVS. SMT.PRASEENA ELIZABETH JOSEPH SRI.PRAFIN JOSEPH ZACHARIA** ## **RESPONDENTS/RESPONDENTS:** **1 C.S.SURESH KUMAR S/O. SHANKARAKURUPPU, INDIVARAM HOUSE, VAZHAPPALLI P.O., CHANGANACHERRY – 686 103.. 2 THE DIVISIONAL MANAGER ORIENTAL INSURANCE COMPANY LIMITED, KOTTAYAM - 686 001.** **SMT K.S.SANTHI- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2016 of 2016 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.265 of 2013 on the file of the Motor Accidents Claims Tribunal, Kottayam, 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 18.11.2012, while he was riding a motorcycle bearing registration No.KL-29/E-1707. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-33/B7020 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.7,58,000/-, under various heads, which was limited to Rs.6,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent owner-cum- -3- MACA. No. 2016 of 2016 driver remained absent and he is set ex parte. 3. The 2[nd] respondent insurer filed written statement admitting the insurance coverage of the car involved in the accident; however, denying the negligence alleged against the 1[st] respondent driver. 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 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 driving of the offending car by the 1[st] respondent driver. Since insurance coverage of the offending 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.64,550/- together with interest at the rate of 9% per annum from the date of petition, i.e. 19.03.2013 till -4- MACA. No. 2016 of 2016 realisation, 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 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 -5- MACA. No. 2016 of 2016 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 the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. In the instant case, the compensation awarded by -6- MACA. No. 2016 of 2016 ## the Tribunal under various heads reads thus; |Sl.<br>No.|Head of Claim|Amount<br>claimed|Amount<br>allowed|Basis/vital details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earnings|1,00,000/<br>-|Not allowed|No loss of earnings-student| |2|Transport to hospital|3,000/-|2,000/-|Considering hospitalisation| |3|Extra nourishment|25000/-|750/-|Considering hospitalisation<br>for 03 days @250 per day| |4|Damage to clothing<br>and articles|5,000/-|1,000/-|Moderate rate| |5|Bystander expenses|25,000/-|5,000/-|In view of the IP treatment<br>for 03 days and nature of<br>the injuries| |6|Medical expenses|1,50,000/<br>-|10,800/-|Supported by Ext.A6 series<br>Medical Bills| |7|Pain and sufferings|2,00,000/<br>-|25,000/-|In view of the grievous<br>injuries| |8|Loss of amenities|2,00,000/<br>-|20,000/-|Reasonable considering the<br>nature of injuries| |9|Permanent disability|50,000/-|Not allowed|Not supported by evidence| ||**Total**|7,58,000<br>limited to<br>6,00,000/<br>-|**64,550/-**|With 9% interest and<br>proportionate costs.| 12. At the time of accident, the appellant was an Engineering student aged 19 years. The Tribunal did not granted any compensation towards loss of earning, since the appellant was a non-earning person. 13. The document marked as Ext.A4 is the wound certificate and Ext.A5 is the discharge summary. Ext.A6 series of medical bills are for a sum of Rs.10,788/-. As per -7- MACA. No. 2016 of 2016 Exts.A4 and A5, the appellant sustained multiple abrasions on face, small lacerated wound on the left upper arm, fracture nasal bone and soft tissue injury. Immediately after the accident, the appellant was taken to St.Thomas Hospital, Chethipuzha, where he had undergone treatment for a period of 3 days. 14. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 3 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. 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. 2,500/-, resulting an additional compensation of **Rs.500** /- (2,500 - 2000). 15. Towards extra nourishment, the Tribunal awarded a sum of Rs.750/- (250 X 3). Towards bystander expenses the Tribunal awarded a sum of Rs. 5,000/-. The accident is of the year 2012 and the appellant had undergone inpatient -8- MACA. No. 2016 of 2016 treatment for 3 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 these heads cannot be said to be on the lower side, which requires no enhancement in this appeal. 16. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2012, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500** /-(1,500 – 1,000). 17. Towards medical expenses, the Tribunal awarded a sum of Rs.10,800/-, 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. 18. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. Towards loss of amenities the Tribunal awarded a sum of -9- MACA. No. 2016 of 2016 Rs.20,000/-.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 these heads cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under these heads. 19. At the time of accident, the appellant was an Engineering student aged 19 years. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court deem it appropriate to grant a sum of **Rs.5,000/-** as compensation for loss of studies. 20. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.6,000/-** (Rupees six thousand only) [500 + 500 +5000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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, -10- MACA. No. 2016 of 2016 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** das