Shahil (Minor) v. APCO Automobiles, Suhail P., National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** ## **MACA.No.1030 OF 2017** **AGAINST THE AWARD IN OPMV 1451/2015 DATED 13-07-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT:** **SHAHIL (MINOR), AGED 17 YEARS, DOB : 28/5/1999, REP. BY HIS FATHER AND LEGAL GUARDIAN ABDUL HARIS, S/O.BABU, RESIDING AT AJMAL NIVAS, MORIKKARA P.O, KIZHAKKEDATH PARAMBA, KOZHIKODE-673 611.** **BY ADV. SRI.AVM.SALAHUDEEN** ## **RESPONDENTS:** - **1 M/S. APCO AUTOMOBIKES, RESIDING AT 17/1202, A4 APCO TOWER, JAIL ROAD, KOZHIKODE-673 004.** - **2 SUHAIL P. S/O.ALI P., AGED 22 YEARS, RESIDING AT KALIYATTU PARAMBA, VELLAYIL PO, KOZHIKODE-673 032.** - **3 NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE-1,PB NO.207, PARCO TOWERS, P.M.TAJ ROAD, KOZHIKODE-673 001.** **SMT DEEPA GEORGE- STANDING COUNSEL FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1030 of 2017 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1451 of 2015 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, 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 09.03.2015, while he was crossing the zebra line. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-11/TC-17/2014 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. 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 riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,85,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent rider remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement M.A.C.A.No.1030 of 2017 3 admitting insurance coverage of the motorcycle involved in the accident; however, denying negligence alleged against the 2[nd] respondent rider. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. No documents were marked on the side of the respondents. The document marked as Ext.C1 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident. 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 riding of the motorcycle by the 2[nd] respondent rider. 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.49,897/-, which was rounded off to Rs.49,900/-, together with interest at the rate of 9% per annum from the date of petition till date of deposit, with proportionate cost and the insurer was M.A.C.A.No.1030 of 2017 4 directed to satisfy the award. 5. Dissatisfied with the quantum of compensation 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 Smt.Deepa George, 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 the 2[nd] respondent rider was dispensed with, by the order dated 19.11.2019. 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 M.A.C.A.No.1030 of 2017 5 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. 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 M.A.C.A.No.1030 of 2017 6 ## the Tribunal under various heads reads thus; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Transport to hospital|1,000/-|2,000/-|| |2|Medical bills|5,000/-|9,897/-|| |3|Pain and sufferings|40,000/-|15,000/-|| |4|Loss of amenities|15,000/-|5,000/-|| |5|Compensation for loss<br>of income due to 4%<br>disability as per Ext.C1.|1,00,000/-|18,000/-|30,000 x 15 x<br>4/100| ||Total||49,897/-<br>rounded<br>Rs.49.900/-|| 11. At the time of accident, the appellant was a minor, aged 15 years. The document marked as Ext.A2 is the wound certificate. As per Ext.A2, the appellant sustained fracture (right) radius. In Ext.C1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 4%. The Tribunal accepted the assessment of disability in Ext.C1, for the purpose of awarding disability compensation. 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 M.A.C.A.No.1030 of 2017 7 appellant, the Apex Court laid down the principles regarding payment of compensation for injuries sustained by children, 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 M.A.C.A.No.1030 of 2017 8 and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Re.1 lakh, unless there are 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 life<br>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 the<br>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_ M.A.C.A.No.1030 of 2017 9 _permanent disability_ shall be Rs.1,00,000/-. In the instant case, the permanent disability of the appellant assessed in Ext.C1 disability certificate is 4%. 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 treatment the appellant had undergone, a sum of **Rs.5,000/-** 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.A5 series of medical bills are for a sum of Rs.9,897/-. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.12,500/-** . M.A.C.A.No.1030 of 2017 10 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 pleading 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.1451 of 2015 is re-fixed as Rs.1,17,500/- (1,00,000 + 5,000 + 12,500) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.67,600/-** (Rupees Sixty Seven Thousand Six Hundred only) [1,17,500 - 49,900] 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 M.A.C.A.No.1030 of 2017 11 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** yd