Sujitha v. Thankamany J. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** ## **MACA.No.1011 OF 2008** **AGAINST THE AWARD IN O.P.(MV)NO.915/2001 DATED 23-06-2007 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT:** **SUJITHA, D/O.THANKAMAY J., AGED 20 YEARS, PORUNNAKIZHAKKATHIL, CHERUMOOD, VELLIMON P.O.** **BY ADVS. SRI.VIJU THOMAS SMT.M.MEENA JOHN** ## **RESPONDENTS:** |**1**|**THANKAMANY J.,**| |---|---| ||**AGED 41 YEARS,**| ||**PORUNNAKIZHAKKATHIL,**| ||**CHERUMOOD, VELLIMON PO.**| |**2**|**RAJENDRAN NAIR,**| ||**S/O.PARAMESWARAN NAIR,**| ||**MUTHAKKATTU MELATHIL PUTHEN VEEDU,**| ||**CHEMMAKKAD P.O., PARINAD( DRIVER)**| |**3**|**DIVISIONAL MANAGER,**| ||**NATIONAL INSURANCE CO.LTD.,**| ||**KOLLAM BRANCH**| ||**(INSURER OF CAR).**| |**4**|**CHANDRIKAMMA**| ||**W/O.GOPALAKRISHNAN PILLAI**| ||**KAVADIYIL,,**| ||**KOTTAKKAKOM, THRIKKADAVUR VILLAGE,**| ||**PARINAD PO.,**| ||**OWNER OF THE AUTORICKSHAW)**| **MACA.No.1011 OF 2008** -2- - **5 SREEKUMAR, S/O.CHELLAPPAN PILLAI MELOOTU VEEDU, EDAVATTOM 'A', VELLIMON PO, KUNDARA** - **6 DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., NEACH ROAD, KOLLAM** - **7 KAMALAMMA, PUTHENPURA, CHEMMAKKAD P.O., PERINAD, KOLLAM( DIED).** - **8 GOPALAKRISHNA PILLAI, PUTHENPURA VEEDU, CHEMMAKKAD P.O., PERINAD, KOLLAM** - **9 DIVYALEKSHMI, D/O.KAMALAMMA, PUTHENPURA VEEDU, CHEMMAKKAD PO., PERINAD, KOLLAM** - **R1,R3 BY ADV. SMT.P.A.REZIYA R1,R6 BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1011 OF 2008** -3- ## **JUDGMENT** The appellant is the 2[nd] claimant in O.P(MV) No.915 of 2001 on the file of the 1[st] Additional Motor Accidents Claims Tribunal, Kollam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the appellant, who was then a minor, along with her mother, who was arrayed as the 1[st] claimant before the Tribunal, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 28.03.2001, while she was travelling in an autorickshaw along with her mother. At the place of accident, a car bearing registration No.KL-15/C-1858, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent hit the autorickshaw. Respondents 4 to 6 are the owner, driver and insurer of the autorickshaw. Additional respondents 7 and 8 are the legal heirs of the deceased 1[st] respondent owner of the car. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. **MACA.No.1011 OF 2008** -4- 2. Before the Tribunal, the 1[st] and 2[nd] respondents remained absent and they were set ex-parte. The owner, driver and insurer of the autorickshaw, who were impleaded as additional respondents 7 and 8, also 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 2[nd] respondent driver. The insurer contended that the accident took place because of rash and negligent driving of the autorickshaw by its driver and that, the amount of compensation claimed is highly excessive. The 6[th] respondent insurer of the autorickshaw filed a written statement denying the liability. 3. Before the Tribunal, Exts.A1 to A9 series were marked on the side of the claimants. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver. Since insurance coverage of the said **MACA.No.1011 OF 2008** -5- 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.31,361/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/2[nd] claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 3[rd] 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 different 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 **MACA.No.1011 OF 2008** -6- 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 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- **MACA.No.1011 OF 2008** -7- violation of the principle of equitability. 10. The compensation awarded by the Tribunal under ## various heads reads thus; |Loss of earning|:|Nil.| |---|---|---| |Transportation to the hospital|:|2000/-| |Expenses for extra nourishment||| |and engagement of bystander|:|3000/-| |Damage to cloth|:|500/-| |Medical bills|:|3861/-| |Compensation for pain & suffering|:|13000/-| |Compensation for disability|:|9000/-| ||-----------------|| |Total||31,361/-| ||=========|| 11. At the time of accident, the appellant was a minor aged 13 years. As per Ext.A6 treatment certificate issued from Medical College Hospital, Thiruvananthapuram, the appellant was admitted in the hospital on 23.03.2001 and discharged on 19.04.2001 due to fracture of neck of right femur. In Ext.A7 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 4%. 12. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC** **MACA.No.1011 OF 2008** -8- **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, 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 **MACA.No.1011 OF 2008** -9- 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 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:- |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 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_ **MACA.No.1011 OF 2008** -10- _permanent disability_ shall be Rs.1,00,000/-. In the instant case, the permanent disability of the appellant assessed in Ext.A7 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 inpatient treatment the appellant had undergone for 28 days a sum of **Rs.12,500/-** is 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/-. The appellant had undergone inpatient treatment for 28 days. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is **MACA.No.1011 OF 2008** -11- ## granted a sum of **Rs.20,000/-** . 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 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.915 of 2001 is re-fixed as Rs.1,32,500/- (1,00,000 + 12,500 + 20,000) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,01,139/-** (Rupees one lakh one thousand one hundred and thirty nine only) [1,32,500 - 31,361] 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 **MACA.No.1011 OF 2008** -12- 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** bpr