Sanal K.K. Haridasan v. Raziya Hameed and Others and National Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** ## **MACA.No.2766 OF 2008** **AGAINST THE AWARD IN OPMV 159/2005 DATED 27-06-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/S:** **SANAL.K.K. HARIDASAN, KUNIYIL KAKKAT HOUSE,, ONCHIYAM AMSOM, URALUNGAL DESOM, P.O.MADAPPALLY COLLEGE-673102** **BY ADVS. SRI.K.JAYAKUMAR (SR.) SRI.P.B.KRISHNAN** ## **RESPONDENT/S:** |**1**|**RAZIYA HAMEED AND OTHERS**| |---|---| ||**VEETTIL HLOUSE, KODIYATHOOR, P.O.KODIYATHOOR,,**| ||**MUKKAM, KOZHIKODE-673602.**| |**2**|**HASSAN.A.P.SO.MUHAMMED PALINADTHODI**| ||**HOUSE, MAPPURAM, CHERUVAYOOR P.O., ERNAD**| ||**TALUK,, MALAPPURAM DISTRICT.**| |**3**|**NATIONAL INSURANCE CO.LTD.**| ||**GOVINDAPURAM P.O. KOZHIKODE,, KOZHIKODE**| ||**DISTRICT.**| ## **OTHER PRESENT:** **SRI.LAL GEORGE, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2766 of 2008 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.159 of 2005 on the file of the Motor Accidents Claims Tribunal, Vatakara, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained him in a motor accident, which occurred on 07.03.2004, while he was pedling a bicycle. At the place of accident, the bicycle was hit by a car bearing registration No.KL-11/R-540, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant, who was then a minor aged 15 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,65,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent/insurer filed written statement admitting insurance coverage of the -3- MACA. No. 2766 of 2008 offending vehicle; however, denying negligence alleged against the 2[nd] 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, the claim petition was tried along with connected matter. Exts.A1 to A15 were marked on the side of the claimants. PW1 and 2 were examined on the side of the claimants. Copy of the insurance policy of the offending vehicle was marked as Ext.B1. The respondents 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 vehicle by the 2[nd] respondent driver. 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.34,648/-, and the insurer was directed to satisfy the award, with interest at -4- MACA. No. 2766 of 2008 the rate of 6% per annum from the date of petition till date of deposit, together with proportionate cost. 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. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 23.10.2019. 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. 2766 of 2008 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. 2766 of 2008 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; |Head|Amount awarded| |---|---| |Pain and suffering|18000| |Transportation to hospital|1500| |Hospital expenses and<br>bystander expenses|1000| |Mental shock and<br>inconvenience suffered|5000| |Medical expenses|9148.27| |**Total**|34,648.27 rounded<br>off to**34,648/-**| 12. The accident occurred on 09.09.2014. At the time of accident, the appellant was a minor aged 15 years. The document marked as Ext.A9 is the accident-cum-wound certificate and that marked as Ext.A10 is the discharge summary. The injuries sustained by the appellant, as borne out from medical records, are fracture of shaft of tibia, lacerated wound on the left eyebrow, abrasions on left cheek, left hand, dorsum of left hand, left ear and right hand. The appellant had undergone inpatient treatment for a period of 7 -7- MACA. No. 2766 of 2008 days in Baby Memorial Hospital, Kozhikode, from 07.03.2004 to 12.03.2004. Ext.A15 medical bills are for a sum of Rs.9,148/-. 14. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. 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 this head represents just and reasonable compensation, which requires no enhancement in this appeal. 15. Towards Hospital expenses and bystander expenses the Tribunal awarded a sum of Rs. 1,000/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 7 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.1,050 /- (150 x 7); and that extra nourishment is re-fixed as Rs. 700/- (100 x 7), resulting an additional compensation of Rs. **750** /- (1,050 + -8- MACA. No. 2766 of 2008 700 – 1,000) under the head hospital expenses and bystander expenses. 16. Towards mental shock and inconvenience suffered, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained, as borne out from medical records, the appellant is granted a sum of Rs.7,500/- under the head loss of amenities. After deducting Rs.5,000/granted under the heads mental shock and inconvenience, the appellant will be entitled for an additional compensation of **Rs.2,500/-** . 17. Towards medical expenses, the Tribunal awarded a sum of Rs.9,148/-, covered by Ext.A15 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.18,000/-. Considering the nature of injuries sustained and the treatment the appellant -9- MACA. No. 2766 of 2008 had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 19. The materials on record would show that as a result of the injuries sustained in the accident, the petitioner could not appear for SSLC examination in March 2004. He was preparing for the examination at the time of accident and he lost one year. The appellant, who was examined as PW1, during cross examination, deposed that he secured 445 marks in SSLC examination, when appeared for the second chance, and there was no impediment for him in continuing his studies. Therefore, the Tribunal came to the conclusion that the non appearance of the appellant for the SSLC examination in the first chance has not affected his studies in any manner. 20. The aforesaid reasoning of the Tribunal cannot be sustained. Admittedly, the appellant, who was a minor aged 15 years, was preparing for the SSLC examination, at the time of accident. On account of the injuries sustained in the -10- MACA. No. 2766 of 2008 accident, he could not appear for that examination and he lost one year. In such circumstances, the appellant is entitled for payment of compensation under the head loss of studies. Considering the facts and circumstances, this Court deem it appropriate to grant a sum of Rs. **10,000** /- as compensation for loss of studies. 21. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.13,250/-** (Rupees thirteen thousand two hundred and fifty only) [750 + 2,500 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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. 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 -11- MACA. No. 2766 of 2008 ## 2019 dated 06.09.2019. This appeal is disposed of as above. No order as to costs. **ANIL K.NARENDRAN JUDGE** das