Suja Rani S.T. v. Manibhushan B and Others

**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.1032 OF 2009** **AGAINST THE AWARD IN OP(MV)No.993/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT** / **APPLICANT** : **SUJA RANI S.T., THANKA BHAVAN, MANAVELI, MULLUVILA P.O., NEYYATTINKARA.** **BY ADV. SRI.R.T.PRADEEP** ## **RESPONDENTS/RESPONDENTS:** - **1 MANIBHUSHAN B, PANMAMTHALA VEEDU KANNAMPALLY, VELLANADU P.O., THIRUVANANTHAPURAM.** - **2 THE MANAGER, UNITED INDIAN INSURANCE CO . LTD, HOSPITAL JUNCTION, NEYYATTINKARA,, THIRUVANANTHAPURAM.** - **3 THE DIVISIONAL MANAGER NATIONAL INSURANCE MANAGER, DIVISIONAL OFFICE,, ST.JOSEPH PRESS BUILDING, VAZHUTHAVAUD,, THIRUVANANTHAPURAM.** **R2 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU** **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. 1032 of 2009 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.993 of 2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara, 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 22.05.2003, while she was travelling as pillion rider in a motorcycle ridden by her husband. At the place of accident, the motorcycle was hit by a goods autorickshaw, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. The 3[rd] respondent is the insurer of the motorcycle in which the appellant was travelling as a pillion rider. In the accident, the appellant/ claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw 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, the 1[st] respondent driver of the autorickshaw remained absent and he was set ex-parte. The 2[nd] respondent/insurer filed written statement admitting the -3- MACA. No. 1032 of 2009 insurance coverage of the autorickshaw involved in the accident; however, denying the negligence alleged against the 1[st] 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. 3. Before the Tribunal the claim petition was tried along with the connected claim petitions. Exts.A1 to A10 were marked on the side of the appellant/claimant. On the side of the respondents, Exts.B1 and B2 were marked. 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 autorickshaw by the 1[st] 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.11,375/-, and the insurer was directed to satisfy the award, with interest at the rate of 7.5% per annum from the date of petition till realisation, together with proportionate cost. -4- MACA. No. 1032 of 2009 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 the learned Standing Counsel for the 2[nd] 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 -5- MACA. No. 1032 of 2009 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 the Tribunal under various heads reads thus; |Head of claim|Amount<br>allowed|Basis/vital<br>details in a<br>nutshell| |---|---|---| |Loss of earning|1,575/-|| |Extra nourishment|2,000/-|1,000 x 2| -6- MACA. No. 1032 of 2009 |Transportation & damage to<br>cloths|1,000/-|(500 x 2)| |---|---|---| |Cost of Medicine|2,000/-|| |Bystander's expenses|300/-|| |Pain and sufferings|3,000/-|| |Loss of amenities|1,500/-|| |**Total**|**11,375/-**|| 11. The accident occurred on 22.05.2003. At the time of accident, the appellant was working as Overseer Grade III, Minor Irrigation Department. The document marked as Ext.A10 is a certificate issued by the Controlling Officer, which shows that the appellant was on earned leave for a period of ten days from 22.05.2003 to 31.05.2003. Her gross monthly salary, as revealed from Ext.A9 salary certificate, was Rs.4,883/- in May 2003. The Tribunal rightly found that for 10 days earned leave, the appellant is required to be compensated by the commuted value of the salary based on the gross salary of Rs.4,883/-, which comes to Rs.1,575/-. 12. As per Ext.A7 wound certificate, the appellant sustained lacerated wound of 2x2x1cm over parietal region and other abrasions. She has undergone inpatient treatment for a period of 3 days. Though the appellant contended that in -7- MACA. No. 1032 of 2009 the accident she sustained fracture, the Tribunal noticed that Ext.A7 wound certificate and Ext.A8 discharge card do not mention about any such fracture. 13. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 3 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-; and towards damage to clothing, the Tribunal awarded Rs.500/-. The accident is of the year 2003 and 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 transportation expenses is re-fixed as Rs. 1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500) under this head and that towards damage to clothing is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 – 500). 14. Towards bystander expenses the Tribunal awarded a sum of Rs.300/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the -8- MACA. No. 1032 of 2009 head bystander expenses is re-fixed as Rs.450/- (150 x 3), resulting an additional compensation of **Rs.150** /- (450 - 300) under this head. 15. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. 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 theis head represents just and reasonable compensation, which requires no enhancement in this appeal. 16. Towards medical expenses, the Tribunal awarded a sum of Rs.2,000/-. In the absence of any reliable materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 17. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.3,000/-. 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 -9- MACA. No. 1032 of 2009 and suffering is re-fixed as Rs.5,000/-, resulting an additional compensation of **Rs.2,000/-** (5,000 – 3,000). 18. Towards loss of amenities 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 cannot be said to be on the lower side, since the appellant sustained only lacerated wound and abrasion. 19. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.2,900/-** (Rupees two thousand nine hundred only) [500 + 250 + 150 + 2000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] 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 -10- MACA. No. 1032 of 2009 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN JUDGE** das