Shafeena.K v. Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **MACA.No.658 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.404/2004 DATED 09-02-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER :** **SHAFEENA.K, D/O.ALIKUTTY, KAKKATTIL HOUSE, ARICHARMALA POST,MILLUMUKKU, MANANTHAVADY, WAYANAD DISTRICT.** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENT/RESPONDENT NO.3:** **ORIENTAL INSURANCE CO. LTD. DIVISION III, D.O.3, 48 CHURCH STREET,, BANGALORE - 560 001.** **R BY ADV. K.S.SANTHI** ## **SR.GP - SMT. DEEPA NARAYANAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.658 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.404 of 2004 on the file of the Motor Accidents Claims Tribunal, Kalpetta, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 09.10.2002, while she was walking along the side of a public road. At the place of accident, she was knocked down by a Maruthi Van bearing registration No.KA01/1882 driven by the 1[st] respondent and owned by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In 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 Maruthi Van by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. 2. Before the Tribunal, the owner of the Van remained absent and he was set ex-parte. The driver of the Van filed written statement denying the alleged accident and **MACA.No.658 OF 2010** **3** disputing the claim made by the appellant/claimant under various heads. The respondent insurer filed written statement admitting insurance coverage of the Van involved in the accident; however, denying negligence alleged against the driver of the said vehicle and disputing the claims made under various heads. 3. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. The appellant/claimant, who attained majority, was examined as PW1. 4. 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 Maruthi Van by its driver. Since insurance coverage of the said 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.12,550/-, together with interest at the rate of 6% per annum from the date of petition till payment and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation **MACA.No.658 OF 2010** **4** awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the respondent insurer. 7. 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. 8. 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 provisions clearly indicate that the compensation must be 'just' and it cannot **MACA.No.658 OF 2010** **5** be a bonanza; not a source of profit; but the same should not be a pittance. ## 9. 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. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Head|Amount allowed<br>(in rupees)| |---|---| |Transportation to hospital|1,000/-| |Extra nourishment|1,000/-| |Damage to clothing|250/-| **MACA.No.658 OF 2010** **6** |Bystander's expenses|1,000/-| |---|---| |Medical expenses|3,300/-| |Pain and suffering|6,000/-| |**Total**|**12,550/-**| 11. The accident occurred on 09.10.2002. At the time of accident, the appellant was a minor aged 15 years. Ext.A3 is the wound certificate issued from the Leo Hospital, Kalpetta, which would show that as a result of the accident, the appellant sustained compound fracture both bones (L) leg. The appellant had undergone inpatient treatment for a period of 7 days. Ext.A6 series of medical bills are for a sum of Rs.3,296/-. Pursuant to the order of this Court dated 22.10.2019, the District Medical Board, Wayanad assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 2% vide its report dated 19.11.2019. ## 12. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC** **396]** , a decision relied on by the learned counsel for the appellant, the Apex Court laid down the principles regarding payment of compensation for injuries sustained by children, **MACA.No.658 OF 2010** **7** 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 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick. Paragraph 12 of the said decision reads thus; “12. Though it is difficult to have an accurate assessment of 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 up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Re.1 lakh, unless there are **MACA.No.658 OF 2010** **8** exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalisation for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:- |Head|Compensation<br>amount| |---|---| |Pain and suffering already undergone and<br>to be suffered in future, mental and<br>physical shock, hardship, inconvenience<br>and discomforts and loss of amenities in<br>life on account of permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the period<br>of hospitalisation.|Rs.25,000/-| |Medical and incidental expenses during<br>the period of hospitalisation for 58 days.|Rs.25,000/-| |Future medical expenses for correction of<br>the malunion of fracture and incidental<br>expenses for such treatment.|Rs.25,000/-| |**TOTAL:-**|**Rs.3,75,000/-**| 13. Going by the law laid down by the Apex Court in **Master Mallikarjun's case (supra)** , for permanent disability up to 10%, the compensation under the head _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_ shall be Rs.1,00,000/-. In the instant case, as per the order of this Court dated 22.10.2019, the **MACA.No.658 OF 2010** **9** permanent disability of the appellant assessed by District Medical Board, Wayanad is 2%. Therefore, the appellant is entitled for a sum of **Rs.1,00,000/-** as compensation under this head. 14. In **Mallikarjun's case** , the injured had undergone inpatient treatment for a period of 58 days. Therefore, under the head _discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation_ , the Apex Court awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the inpatient treatment the appellant had undergone for 7 days, a sum of **Rs.8,000/-** can be granted as compensation under this head. 15. In **Mallikarjun's case** , under the head _medical and incidental expenses during the period of hospitalisation_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, Ext.A6 series of medical bills are for a sum of Rs.3,296/- and the Tribunal awarded a sum of Rs.3,300/under the said head. Therefore, towards medical and incidental expenses, including transportation to hospital, the **MACA.No.658 OF 2010** **10** appellant is granted a sum of **Rs.8,000/-** . 16. In **Mallikarjun's case** , under the head future medical expenses for correction of the malunion of fracture and incidental expenses for such treatment, the Apex Court awarded a sum of Rs.25,000/-. In the instant case, the pleadings and materials on record would not indicate malunion of fracture or requirement for future treatment. Therefore, the appellant is not entitled for any amount under this head. 17. In the result, the total compensation in O.P. (MV)No.404 of 2004 is re-fixed as Rs.1,16,000/- (1,00,000 + 8,000 + 8,000) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,03,450/-** (Rupees One lakh three thousand four hundred and fifty only) [1,16,000 – 12,550] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. 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, **MACA.No.658 OF 2010** **11** 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/20/12