Sreenija V.V. v. Shaji, K.S. Sanil, Branch Manager, United India Insurance Co. Ltd., Joseph T.C., and Branch Manager, National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941** **MACA.No.5 OF 2013** **AGAINST THE AWARD IN O.P.(MV) NO.78/2008 DATED 18-10-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **SREENIJA.V.V., D/O.VELAYUDHAN, VAREKKADAN HOUSE, PULIPPARAKUNNU DESOM, KODAKARA VILLAGE, THRISSUR DIST.** **BY ADVS. SRI.V.BINOY RAM SMT.SAJITHA P.SOMAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**SHAJI,**| |---|---| ||**S/O.DHARMAN,**| ||**PALLATHERY HOUSE,**| ||**MATTATHURKUNNU P.O., MOOLAMKUDAM,**| ||**THRISSUR DISTRICT, PIN-680 684.**| |**2**|**K.S.SANIL,**| ||**S/O.SADASIVAN,**| ||**KUNDANI HOUSE,**| ||**KODAKARA P.O., THRISSUR DISTRICT,**| ||**PIN-680 684.**| |**3**|**THE BRANCH MANAGER,**| ||**UNITED INDIA INSURANCE CO.LTD.,**| ||**MAIN ROAD, IRINJALAKUDA,**| ||**PIN-680 121.**| |**4**|**JOSEPH T.C.,**| ||**S/O.T.V.CHUMMAR,**| ||**THENGIL PALAMATTATH HOUSE,**| ||**VELLANGALLUR P.O.,**| ||**THRISSR DISTRICT, PIN-680 662.**| **MACA.No.5 OF 2013** -2- **5 THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., MAIN ROAD, IRINJALAKUDA, PIN-680 121.** **BY ADV. SRI.C.JOSEPH JOHNY R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD R5 BY ADV. SRI.S.K.AJAY KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.5 OF 2013** -3- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.78 of 2008 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 22.06.2007, while she was travelling in a bus bearing registration No.KL-8/W-9984, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the bus hit upon a motorcycle and a tanker lorry bearing registration No.KL-8/J5139, owned and driven by the 4[th] respondent and insured with the 5[th] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,75,000/- under various heads, which was limited to Rs.1,20,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1, 2 and 4 remained absent and they were set ex-parte. **MACA.No.5 OF 2013** -4- 3. The 3[rd] respondent insurer of the bus filed written statement admitting the insurance coverage of the said vehicle; however, denying the negligence alleged against the 2[nd] respondent driver. The insurer raised a contention as to violation of the policy conditions, since the 1[st] respondent driver was driving the bus without a valid driving licence. The insurer contended that the compensation claimed is highly excessive. 4. The 5[th] respondent insurer of the lorry filed written statement admitting insurance coverage of the said vehicle; however, denying negligence on the part of the driver of that vehicle. The insurer contended that the accident occurred due to the rash and negligent driving of the bus by the 1[st] respondent driver, who has been charge sheeted by the Police. 5. Before the Tribunal, claim petition was tried along with connected case. Exts.A1 to A18 were marked on the side of the claimants and PWs1 to 3 were examined. On the side of the respondents, the insurance policy of the vehicles were marked as Exts.B1 and B2. 6. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident **MACA.No.5 OF 2013** -5- occurred due to the rash and negligent driving of the bus by its 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.47,004/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 07.02.2008 till realisation, with proportionate cost, and the 3[rd] respondent insurer was directed to satisfy the award. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 8. 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 the 2[nd] respondent owner was dispensed with, by the order of this Court dated 29.10.2019. 9. 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. **MACA.No.5 OF 2013** -6- 10. 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. 11. 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 **MACA.No.5 OF 2013** -7- 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. 12. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No|Head of claim|Amount<br>claimed<br>(Rs.)|Amount<br>awarded<br>(Rs.)|Basis vital details in<br>a nutshell| |---|---|---|---|---| |1|Loss of earning (Total)|15,000|---|| |2|Medical and miscellaneous|50,000|17,904|| |3|Transportation expenses|2,000|500|| |4|Pain and suffering|25,000|13,000|| |5|Permanent disability|50,000|---|| |6|Damage to clothing|500|---|| |7|Extra nourishment|500|300|| |8|Loss of amenities and<br>conveniences etc.|20,000|15,000|| |9|Loss of earning power|10,000|---|| |10|Bystander's expenses|2,000|300|Rs.100 x 3 days| ||Total|1,75,000/-<br>(Limited to<br>Rs.1,20,000)|47,004/-|Rs.47,004/- along<br>with interest at the<br>rate of 7.5% p.a.<br>from 07.02.2008 till<br>realisation.| 13. The accident occurred on 22.06.2007. At the time of accident, the appellant was aged 22 years, who was pursuing her B.Ed course. She was unmarried. 14. The document marked as Ext.A2 is the wound certificate and Ext.A4 is the discharge summary. As per **MACA.No.5 OF 2013** -8- medical records, in the accident, the appellant had sustained fracture on upper jaw; loss of 5 teeth on the upper jaw; laceration on upper lip; and contusion on left forearm. She complained pain on right elbow. She had undergone inpatient treatment for a period of three days. The document marked as Ext.A5 is the prescription for the dental procedures. As per Ext.A6 certificate, she lost 5 teeth. Ext.A7 series of medical bills are for a sum of Rs.17,903.79/-. 15. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 3 days. The accident is of the year 2007. 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.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500). 16. Towards bystander expenses the Tribunal awarded a sum of Rs.300/- (100 x 3). Towards extra nourishment, the Tribunal awarded a further sum of Rs.300/- (100 x 3). The accident is of the year 2007 and the appellant had undergone **MACA.No.5 OF 2013** -9- inpatient 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 under the head bystander expenses is re-fixed as Rs.600/- (200 x 3), resulting an additional compensation of **Rs.300/-** (600 - 300). The compensation under the head extra nourishment is re-fixed as Rs.450/- (150 x 3), resulting an additional compensation of **Rs.150/-** (450 - 300). 17. The Tribunal awarded no amount towards damage to clothing. Considering the fact that the accident is of the year 2007, this Court deem it appropriate to grant a sum of **Rs.1,000/-** under this head. 18. Towards medical expenses, the Tribunal awarded a sum of Rs.17,904/-, covered by Ext.A7 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. 19. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.13,000/-. Considering the nature of injuries sustained and the treatment the appellant **MACA.No.5 OF 2013** -10- had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.2,000/-** (15,000 - 13,000). 20. Towards loss of amenities, the Tribunal awarded a sum of Rs.15,000/-. In the absence of any disability certificate, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 21. At the time of accident, the appellant was unmarried, who was aged 22 years. She lost 5 teeth on the upper jaw. She had undergone fixation of 5 artificial teeth with bridge. The Tribunal awarded no amount towards disfiguration and loss of marriage prospects. Considering the nature of injuries sustained, this Court deem it appropriate to grant a sum of **Rs.15,000/-** under this head. 22. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.19,450/-** (Rupees nineteen thousand four hundred and fifty only) [1,000 + 300 + 150 + 1,000 + 2,000 + 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date **MACA.No.5 OF 2013** -11- 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. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of 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. The appellant shall provide her bank details before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr