Suresh Kumar v. Biju, Dayas Yesudasan and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 21[ST] DAY OF JUNE 2021 / 31ST JYAISHTA, 1943** **MACA NO. 1985 OF 2013** **AGAINST THE AWARD IN OPMV 671/2009 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL ,KOLLAM,** ## **APPELLANT/PETITIONER:** **SURESH KUMAR AGED 30 YEARS S/O LEKHSMANAN ACHARY, KALEEKKAL MELETHIL PUTHEN VEEDU, CHEENMOODU, VELLIMON P.O, KUNDARA, KOLLAM** BY ADVS. SRI.V.JAYAPRADEEP SRI.SHANE WILFRED MORRIS ## **RESPONDENTS/RESPONDENTS:** 1 **BIJU S/O JOHN KAKKIRI, KOCHUVILA PUTHEN VEEDU, INCHAVILA P.O, PERINAD, KOLLAM DISTRICT - 691 601** 2 **DAYAS YESUDASAN S/O YESUDASAN, KALLARAZHIKATHU VEEDU, CHITTAYAM, INCHAVILLA P.O, PERINAD, KOLLAM DISTRICT-691 601** 3 **THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD, KOLLAM-691 601** BY ADVS. SRI.PRATHEESH.P SMT.M.PARVATHY SMT.P.A.REZIYA **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.1985 of 2013 2 **K.BABU, J. ========================= M.A.C.A No.1985 of 2013** **==========================** Dated this the 21[st] day of June, 2021 ## **JUDGMENT** This appeal, filed under Section 173 of the Motor Vehicle Act, 1988, arises from the award dated 8.12.2011 in O.P(MV) No.671/2009 of the Motor Accidents Claims Tribunal, Kollam (for short 'the Tribunal'). The petitioner is the appellant. The respondents 1 and 2 are the driver and owner respectively of the offending vehicle. The respondent No.3 is the insurer. 2. The parties will be referred to as per their status in the Original Petition. 3. Heard Sri.Jayapradeep, the learned counsel for the petitioner and Smt.P.A.Reziya, the learned counsel for respondent No.3. 4. On 24.11.2008 the petitioner was riding pillion on a motor bike bearing registration No.KL-2/Z 3482 through Anchalummoodu- M.A.C.A No.1985 of 2013 3 Perumon public road from north to south. When the vehicle reached Anchuttamukku, another motor bike bearing registration No.KL-2/AB 1426 ridden by the 2[nd] respondent hit against the motor bike in which the petitioner was riding. The 2[nd] respondent was riding the motor bike in a rash and negligent manner. Due to the impact of the hit, the petitioner fell down and sustained severe injuries. 5. The insurance company admitted that a valid insurance policy was issued in respect of the offending vehicle in the name of respondent No.1. 6. The evidence in this case consists of Exts.A1 to A11 marked on the side of the petitioner. 7. The Tribunal recorded the following findings: i) The 2[nd] respondent was responsible for the accident. ii) The petitioner is entitled to a sum of Rs.53,500/- as compensation. iii) Respondent Nos.1 and 2 are jointly and severally liable to pay compensation and the 3[rd] respondent being the insurer shall satisfy the award. 8. The learned counsel for the petitioner submitted that the compensation awarded is not just and reasonable. Per contra, the M.A.C.A No.1985 of 2013 4 learned counsel for the 3[rd] respondent, insurance company, submitted that the amount awarded is reasonable in view of the nature of injuries sustained by the petitioner. 9. The petitioner sustained the following injuries in the incident. i) Head injury. ii) Fracture of left temporal bone. iii) Fracture over maxillary sinus. iv) Fracture of Hemosinus v) Loss of one tooth from upper jaw vi) Crush injury to jaw vii) Mandible shake viii) Injury to scalp 10. Ext.A9 accident register cum wound certificate shows that the petitioner was taken to Matha Medical Centre, Mathilil on 24.11.2008 immediately after sustaining injuries in the incident. Ext.A8, the CT scan report dated 24.11.2008, narrates the injuries sustained by the petitioner as mentioned above. Ext.A5, discharge card dated 30.11.2008, issued from the Medical College Hospital, Thiruvanathapuram shows that the petitioner was admitted there on 25.11.2008 and discharged on 30.11.2008. Ext.A7, case sheet dated 27.11.2008, narrates the details of treatment undergone by the petitioner at the Dental College, Thiruvanathapuram. Ext.A6, medical M.A.C.A No.1985 of 2013 5 prescription dated 3.12.2008, refers to the treatment undergone by the petitioner at a Multi Specialty Dental Clinic at Kundara. 11. The Tribunal assessed the compensation under different heads as narrated below: - - 1. Loss of earning (Total) Rs.8,000/2. Medical and miscellaneous - - expenses Rs. 2,000/- - 3. Bystander expenses Rs. 750/- - 4. Transportation expenses Rs. 1,000/- - 5. Extra nourishment Rs. 1,000/- - 6. Pain and suffering Rs.15,000/- - 7. Loss/reduction in earning - - capacity Rs.24,480/___________ - - Total Rs.52,230/rounded as Rs.53,500/=========== 12. The learned counsel for the petitioner submitted that the compensation arrived at by the Tribunal under different heads is not fair and reasonable. It is submitted that the amount of compensation awarded towards pain and suffering being Rs.15,000/- is unreasonable in view of nature of fracture sustained by the petitioner. The learned counsel submitted that the Tribunal has not taken into account the pain suffered by the petitioner consequent to the injury and the sufferings undergone by him in the course of medical treatment and surgical procedures. The learned counsel further submitted that the M.A.C.A No.1985 of 2013 6 Tribunal has not taken a realistic approach in the assessment of compensation. 13. The learned counsel for the petitioner submitted that the Tribunal ignored the fact that the petitioner had lost his income from employment for a minimum period of one year immediately after the accident. He also challenged the assessment of the monthly income of the petitioner by the Tribunal. 14. The learned Author Harvey McGregor in his book on Damages (The Common Law Library No.9, Fourteenth Edition, Page No.1214) deals with the term 'pain and suffering' as follows: “ _The term “pain and suffering” has been used so constantly by the courts without any clear distinction between the two words that it is now a term of art. It has been suggested that “pain” is the immediately felt effect on the nerves and brain of some lesion or injury to a part of the body, while “suffering” is distress which is not felt as being directly connected with any bodily condition. On this analysis pain needs no further elucidation; it may be noted that it will include, for the purpose of damages, any pain caused by medical treatment or surgical operation rendered necessary by the injury inflicted by the defendant. As to suffering, this would seem to include fright at the time of the injury and fright reaction, fear of future incapacity, either as to health, sanity or the ability to make a living, and humiliation, sadness and embarrassment caused by disfigurement.”_ ## 15. The learned Author in Halsbury's Laws of England (Fourth Edition, para 883) writes thus on pain and suffering: _“Damages are awarded for the physical and mental distress caused to the plaintiff, both pre-trial and in the future, as a result of the injury. This includes pain caused by the injury itself and any treatment intended to alleviate it; the awareness of and embarrassment at the_ M.A.C.A No.1985 of 2013 7 _disability or disfigurement, or suffering caused by anxiety that the plaintiff's condition may serious deteriorate.”_ 16. This Court visualises the 'pain' caused to the petitioner consequent to the injuries and the 'pain' caused by the medical treatment and surgical operation. This Court also takes note of the shock, frustration and embarrassment suffered by the petitioner. 17. The concept of 'just compensation' 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 [Vide _**National Insurance Co. Ltd v. Pranay Sethi (2017ACJ 2700)** ]_ 18. Now, I turn to consider the arguments of the counsel for the petitioner in the backdrop of the principles discussed above. 19. The Tribunal granted Rs.15,000/- towards pain and suffering to the petitioner, which in my view is not reasonable and just. I am of the view that the petitioner is entitled to a reasonable M.A.C.A No.1985 of 2013 8 enhancement in the compensation towards pain and suffering. I hold that the petitioner is entitled to a sum of Rs.35,000/- towards pain and suffering. The Tribunal only granted a sum of Rs.8,000/- towards loss of earning on the finding that the petitioner was incapacitated to go for employment for two months. The materials placed before the court lead this Court to conclude that the petitioner is entitled to loss of earning for a minimum period of four months. Hence he is entitled to Rs.16,000/- towards loss of earning. The Tribunal granted only a sum of Rs.1,000/- towards transportation expenses. It is borne from the records that the petitioner had to undergo inpatient treatment for a period of six days at Medical College Hospital, Thiruvananthapuram. He had to continue his treatment as an outpatient. He had attended for periodic review at the Medical College Hospital. Hence I hold that the petitioner is entitled to a sum of Rs.3,000/- towards transportation expenses. 20. The petitioner is entitled to enhanced compensation as follows: - i) Pain and suffering Rs.20,000/ii) Loss of earning Rs. 8,000/iii) Transportation expenses Rs. 2,000/__________ - Total Rs.30,000/- M.A.C.A No.1985 of 2013 9 In the result, the appeal is allowed in part. The petitioner is entitled to a sum of Rs.30,000/- as enhanced compensation with 8% interest for the amount from the date of petition. The 3[rd] respondent insurance company will deposit the amount within three months from the date of receipt of a certified copy of this judgment. The original award shall stand modified to the above extent. **Sd/K. BABU JUDGE** ab