High Court of KeralaSingle Judge2020-01-23Appeal disposed of; enhanced total compensation...

Sundar Raj Plavila Puthen Veedu v. Jose Mathew S/o Bernard Mathew, Deepu G. Deth S/o Gurudev M., and The National Insurance Company

Case / Petition Number:MACA.No.2338 OF 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
Judgment Date: 2020-01-23
Court Decision / Holding: Appeal disposed of; the total compensation is re-fixed at Rs.3,60,000 with interest at 8% per annum from the date of petition till realization; the 3rd respondent insurer shall satisfy the enhanced amount within two months of receipt of a certified copy of this judgment, after deducting any liability of the claimant; payment to be made as per Circular No.3 of 2019 and Official Memorandum No.D1-62475/2016; no order as to costs.
Final Disposition: Appeal disposed of; enhanced total compensation and payment directions as stated; no costs awarded.

Parties to the Case

Appellants / Petitioners

Sundar Raj Plavila Puthen Veedu

Respondents

Jose Mathew S/o. Bernard Mathew
Deepu G. Deth S/o Gurudeth M.
The National Insurance Co. Ltd. (DivisionaI Manager)

Legal Representation & Advocates

Counsels for Petitioners

• Sri. L. Mohanan

Counsels for Respondents

• Sri. E. M. Joseph
• Sri. O. V. Maniprasad
• Sri. Saju J. Panicker

Case Synopsis & Summary

This is a Motor Accidents Claims case under Section 166 of the Motor Vehicles Act, 1988, heard by a single judge of the Kerala High Court. The claimant, a minor aged 13 at the time of the accident (24.08.2004), sustained a fracture left femur when the bicycle he was riding was knocked down by a motorcycle (KL-5/A-5550) owned by the first respondent, ridden by the second respondent and insured with the third respondent. The Motor Accidents Claims Tribunal held the accident occurred due to rash and negligent riding by the rider (second respondent) and directed the insurer to indemnify the insured; the total award was Rs.85,750 with interest at 7.5% and costs. The appellant challenged the quantum, contending under various heads the award was inadequate and did not reflect medical, transport, disability and future care costs, especially since the disability was assessed at 15%. Relying on Supreme Court precedents such as State of Haryana v. Jasbir Kaur, National Insurance Co. v. Pranay Sethi, and Master Mallikarjun, the High Court re-evaluates the heads of damage for a child victim with disability. The court prescribes higher amounts for pain and suffering, medical expenses and future costs, resulting in a total enhanced sum of Rs.3,60,000 with interest at 8% from the date of petition, payable by the insurer within two months, and without any costs order.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988Section 168 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Just compensation under the Motor Vehicles Act must be fair, reasonable and equitable; not a windfall
Compensation should reflect fairness, reasonableness and equitability rather than arithmetic exactness
The conception of 'just compensation' is to be viewed through the prism of fairness and non-violation of equitable principles

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal undercompensated the claimant and that, following the Supreme Court’s pronouncements in Pranay Sethi and Mallikarjun, compensation in cases involving child victims with disability must be higher. They seek enhancement across heads including pain and suffering, disability, medical and incidental expenses, transport, and future medical costs. The argument emphasizes that just compensation is not a windfall but a fair measure of the damages suffered, extended to reflect the 15% permanent disability and prolonged hospitalisation.

Contentions of Respondents

The respondents defend the Tribunal’s award as just and reasonable, arguing that the evidence does not justify a higher quantum and that enhancement would amount to a windfall. They rely on the established principle that liability should be determined and that the calculated damages must reflect actual losses, while noting ex parte status of some respondents in the proceedings.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Haryana v. Jasbir Kaur	(2003) 7 SCC 484	Positive	Cited to establish that 'just compensation' must be fair and reasonable, not a windfall, guiding the court’s approach to determining damages under the MV Act.
National Insurance Company Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Constitution Bench decision emphasizing that determination of 'just compensation' is rooted in fairness, reasonableness and equitability, not exact arithmetic; informs the standard for head-wise assessment.
Master Mallikarjun v. Divisional Manager, National Insurance Company Limited	(2014) 14 SCC 396	Positive	Provides yardstick for compensation in cases involving children with disability; applied to determine appropriate amounts for pain and suffering and related heads in the instant case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** ## **MACA.No.2338 OF 2010** ## **AGAINST THE AWARD DATED 13-07-2010 IN OP(MV)1878/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRIVANDRUM** ## **APPELLANT/PETITIONER:** **SUNDAR RAJ PLAVILA PUTHEN VEEDU,, T.C.18/105, JAI NAGAR, THRIKKANNAPURAM WARD, THIRUMALA,, THIRUVANANTHAPURAM** **BY ADV. SRI.L.MOHANAN** ## **RESPONDENTS/RESPONDENTS:** - **1 JOSE MATHEW S/O.BERNARD MATHEW, CANDLE GARDEN, NEAR S.B. HIGH SCHOOL, CHANGANASSERI, QUILON** - **2 DEEPU.G.DETH S/O.GURUDETH M., ANAPATHA HOUSE, MUTTATHARA, THIRUVANANTHAPURAM** - **3 THE NATIONAL INSURANCE CO. REP.BY ITS DIVISIONAL MANAGER, THIRUVANANTHAPURAM** **R3 BY ADV. SRI.E.M.JOSEPH R1 BY ADV. SRI.O.V.MANIPRASAD R1 BY ADV. SRI.SAJU J PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2338 OF 2010** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1870 of 2004 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries in a motor accident, which occurred on 24.08.2004, while the appellant, who was a minor aged 13 years, was pedalling a bicycle. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-5/A-5550 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 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.1,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner filed written statement admitting the accident; however, denying negligence alleged against the 2[nd] respondent rider. The 1[st] respondent contended that the accident occurred due to the negligence on the part of the appellant. Respondents 2 and 3 **MACA.No.2338 OF 2010** 3 remained absent and they were set ex parte. 3. Before the Tribunal, Exts.A1 to A18 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary 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 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.85,750/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with a cost of Rs.1,000/- and the insurer was 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, the learned counsel for the 1[st] respondent and also the learned Standing Counsel for the 3[rd] respondent insurer. **MACA.No.2338 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.2338 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: |Sl. No.|Head of claim|Amount claimed|Amount awarded|Basics-vital details in a nutshell| |---|---|---|---|---| |1|Medical and miscellaneous expenses|10000|3000|Exts.A14 and A18 bills for Rs.2,728/- rounded to Rs.3,000/-| |2|Transportation to the hospital|7000|1000|Reasonable estimate made| |3|Bystander's expenses|10000|3000|30x100x1 person| |4|Extra nourishment|10000|1000|Reasonable estimate made| |5|Damage to clothing|1000|250|Reasonable estimate made| |6|Loss of earning||Nil|| |7|Compensation for pain and suffering|50000|10000|One fracture. So may inconveniences thereafter| |8|Compensation for continuing disability|100000|67500|2500x12x15x15%| |9|Compensation for loss of earning power|50000|NIL|No data| |10|Compensation for loss of||NIL|Reasonable estimate| **MACA.No.2338 OF 2010** 6 ||amenities|||| |---|---|---|---|---| ||TOTAL|238000|85750|With interest at 7.5% per annum from 30.9.2004 and cost Rs.1,000/-| 11. At the time of accident, the appellant was a minor, aged 13 years. The document marked as Ext.A6 is the treatment card. As per Ext.A6, the appellant sustained fracture shaft of left femur. As per Ext.A7 discharge card, the appellant was treated by skeletal traction followed by 1½ hip spica and the plaster was removed on 08.11.2004. The appellant had undergone inpatient treatment for 45 days. Exts.A14 and A15 medical bills are for a sum of Rs.2,728/-. In Ext.A9 disability certificate, the permanent partial disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. The Tribunal accepted the percentage of disability in Ext.A9, 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 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 **MACA.No.2338 OF 2010** 7 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 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 **MACA.No.2338 OF 2010** 8 ## compensation as follows:- |Head|Compensation amount| |---|---| |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 permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation.|Rs.25,000/-| |Medical and incidental expenses during the period of hospitalisation for 58 days.|Rs.25,000/-| |Future medical expenses for correction of the malunion of fracture and incidental 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 above 10% and up to 30%, 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 permanent disability_ shall be Rs.3,00,000/-. In the instant case, the permanent disability of the appellant assessed in Ext.A9 disability certificate is 15%. Therefore, the appellant is entitled for a sum of **Rs.3,00,000/-** 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 **MACA.No.2338 OF 2010** 9 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 for 45 days, a sum of **Rs.25,000/-** 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, Exts.A14 and A18 medical bills are for a sum of Rs.2,728/-. The appellant had undergone inpatient treatment for 45 days, under different spells. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.25,000/-** . 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, considering the nature of injuries noticed in Ext.A7 discharge certificate and also the nature of disabilities noted in Ext.A9 disability certificate, the appellant is **MACA.No.2338 OF 2010** 10 ## granted a sum of **Rs.10,000/-** under this head. 17. In the result, the total compensation in O.P. (MV)No.1870 of 2004 is re-fixed as Rs.3,60,000/- (3,00,000 + 25,000 + 25,000 + 10,000) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.2,74,250/-** (Rupees two lakhs seventy four thousand two hundred and fifty only) (3,60,000 – 85,750) 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 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. The appellant shall provide his bank details (attested copy of the relevant page of the Bank Passbook having details of the Bank **MACA.No.2338 OF 2010** 11 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 certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** jv **JUDGE**