Sneha Thomas v. Asma Beevi and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941** **MACA.No.494 OF 2010** **AGAINST THE JUDGMENT IN OPMV 252/2007 DATED 12-08-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **SNEHA THOMAS, MINOR REP. BY HER FATHER THOMAS, KALAPARAMBATH HOUSE,, KUMBIDI DESOM, ALATHUR VILLAGE, THRISSUR DISTRICT.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** - **1 ASMA BEEVI, W/O.THETTAYIL SAIDU MUHAMMED PARAKADAVU P.O., POOVATHUSSERY, THRISSUR DISTRICT.** - **2 SAIDU MUHAMMED THETTAYIL HOUSE PARAKADAVU P.O., POOVATHUSSERY, THRISSUR DISTRICT.** - **3 THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD., PUMP JUNCTION, ALUVA, ERNAKULAM.** **R1 BY ADVS. SRI.A.S.BENOY SRI.GIMMY GEORGE R3 BY ADV. SRI.LAL GEORGE** ## **ADV. SRI.A.K.SRINIVASAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.494 of 2010 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.252 of 2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 29.11.2006, while she was walking along the side of the road. At the place of accident, she was knocked down by a car bearing registration No.KL-7/S-1035 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant, who was then a minor aged 9 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- 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 car involved in the accident; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the accident occurred due to the negligence on the part of the MACA No.494 of 2010 3 appellant, who carelessly crossed the road. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 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 car by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.62,200/-, together with interest at the rate of 7% per annum from the date of petition till date of deposit, with proportionate cost and the 3[rd] respondent insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, 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 3[rd] respondent insurer. MACA No.494 of 2010 4 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 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 MACA No.494 of 2010 5 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; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Medical bills||27,800/-|A11 series of bills| |2|By stander expenses||1,900/-|(100 x 19)| |3|Extra nourishment||nil|| |4|Transportation<br>to<br>hospital||500/-|| |5|Pain and sufferings||12,000/-|| |6|Discomfort and Loss of<br>amenities||5,000/-|| |7|Scar on the right thigh||10,000/-|| |8|Loss of academic year||5,000/-|| ||Total|**1,50,000/-**|**62,200/-**|| 11. The accident occurred on 29.11.2006. At the time of accident, the appellant was a minor aged 9 years, who was studying in 4[th] standard. The documents marked as Ext.A3 is the wound certificate issued from St.James Hospital, Chalakudy and MACA No.494 of 2010 6 Ext.A4 is the discharge summary. As per medical records, after the accident, the appellant was admitted in the hospital with tenderness and deformity over the right thigh involving restriction of movements. Investigation revealed subtrochanteric fracture and green stick fracture of right femur. She had undergone inpatient treatment for a period of 19 days. Thereafter, as evident from Ext.A5 discharge card, she was admitted on 18.04.2008 for implant removal. Ex.A11 series of medical bills are for a sum of Rs.27,800/-. 12. The document marked as Ext.A6 is the disability certificate issued by an Orthopaedic surgeon of St.James Hospital, Chalakkudy, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 5%. Ext.A6 disability certificate was not proved by examining the doctor concerned. It is noted in Ext.A6 that the fracture of right femur had united well. The Tribunal noticed that in Ext.A6 permanent disability of 5% is assessed on the ground of permanent scar at the fracture site. Therefore, the Tribunal rightly held that the appellant is not entitled for payment of any compensation under the head permanent disability. MACA No.494 of 2010 7 13. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 19 days. The accident is of the year 2006. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. 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.3,000/-, resulting an additional compensation of **Rs.2,500/-** (3,000 - 500). 14. Towards bystander expenses the Tribunal awarded a sum of Rs. 1,900/-. The Tribunal awarded no compensation under the head extra nourishment. The accident is of the year 2006 and the appellant had undergone inpatient treatment for 19 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.3,800/- (200 x 19), resulting an additional compensation of **Rs.1,900/-** (3,800 – 1,900). The appellant is granted a further sum of **Rs.2,850/-** (150 x 19) under the head extra nourishment. 15. Towards medical expenses, the Tribunal awarded a MACA No.494 of 2010 8 sum of Rs.27,800/-, covered by Ext.A11 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. 16. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. 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 the head pain and suffering is refixed as Rs.25,000/-, resulting an additional compensation of **Rs.13,000/-** (25,000 – 12,000). 17. Towards discomfort and loss of amenities the Tribunal awarded a sum of Rs.5,000/-. As already noted, in Ext.A6 disability certificate, permanent disability of 5% is assessed on the ground of permanent scar at the fracture site. It is noted in Ext.A6 that the fracture of right femur had united well. In the absence of reliable materials to prove any permanent disability of the appellant, on account of the injuries sustained in the accident, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no MACA No.494 of 2010 9 enhancement in this appeal. 18. The injuries sustained in the accident had resulted in a permanent scar on the right thigh of the appellant, as noted in Ext.A6. Considering the said fact the appellant is granted a sum of **Rs.10,000/-** as compensation under the head disfiguration and a her sum of **Rs.10,000/-** as compensation under the head loss of marriage prospects. 19. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.40,250/-** (Rupees Forty thousand two hundred and fifty only) [2,500 + 1,900 + 2,850 + 13,000 + 10,000 + 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 one month 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 2019 dated MACA No.494 of 2010 10 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. The appellant shall provide her 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 copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K. NARENDRAN** **JUDGE** hmh