Unni P.R. v. The Manager, IFFCO Tokio General Insurance Co Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** ## **MACA.No.4179 OF 2018** **AGAINST THE AWARD IN OP(MV) NO. 1840/2010 DATED 31-08-2018 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-III, THRISSUR** ## **APPELLANT/APPLICANT:** **UNNI P.R, AGED 63 YEARS S/O RAMAN,PAZHAMUKKIL(H), MUNDOOR DESOM, ANJOOR VILLAGE, THRISSUR TALUK 680 523.** **BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS** ## **RESPONDENT/3RD RESPONDENT:** **THE MANAGER, IFFCO TOKIO GENERAL INSURANCE CO LTD, 4TH & 5TH FLOOR,IFFCO TOWER,PLOT NO3, GURGAON-122001.** **R1 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.4179 OF 2018** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1840 of 2010 on the file of the III Additional Motor Accidents Claims Tribunal, Thrissur, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, which occurred on 31.07.2010, while he was walking along the side of a public road. At the place of accident, he was knocked down by a car bearing registration No.KL-08/AR-8789 driven by the 1[st] respondent and owned by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.9,11,000/- under various heads, which was limited to Rs.5,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 filed a written statement alleging that the accident occurred due to the **MACA.No.4179 OF 2018** 3 ## negligence of the appellant/claimant. 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the vehicle 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. 4. Before the Tribunal, Exts.A1 to A15 were marked on the side of the appellant/claimant. The document marked as Ext.X1 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident. 5. 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 offending vehicle by the 1[st] respondent driver. 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.1,25,340/- and the insurer was directed to satisfy the award, together with interest at the rate of **MACA.No.4179 OF 2018** 4 9% per annum from the date of petition till realisation, with proportionate cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the respondent insurer. 8. 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. 9. 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 **MACA.No.4179 OF 2018** 5 be a bonanza; not a source of profit; but the same should not be a pittance. 10. 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. 11. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus; |Sl.<br>No.|Head of Claim|Compensation<br>claimed|Amount<br>determined|Reasons| |---|---|---|---|---| |1|Loss<br>of<br>earning<br>Rs.29815x6months|1,78,890|----|Permanent<br>disability<br>assessed| |2|Transport to hospital|3,000|2,000|| |3|Extra nourishment|10,000|5,000|| **MACA.No.4179 OF 2018** 6 |4|Damage to clothing &<br>articles|4,500|500|| |---|---|---|---|---| |5|Medical expenses including<br>expected future expenses<br>for removing the internal<br>fixation|1,00,000|25,000|Ext.A11 medical<br>bills for a sum<br>of<br>Rs.24,946.81/-| |6|Personal<br>assistance<br>Rs.200x30 daysx2months|12,000|6,000|(Rs.3,000x2<br>months)| |7|Compensation for pain &<br>suffering|50,000|5,000|| |8|Compensation<br>for<br>continuing or permanent<br>disability|3,93,558|81,840|(10,000x12x6.2<br>/100x11)| |9|Compensation for loss of<br>earning power|60,000||| |10|Loss of amenities of life|50,000||| |11|Compensation for mental<br>shock and agony|50,000||| ||Total<br>Claim limited to|Rs.9,11,948/-<br>Rs.5,00,000/-|Rs.1,25,340/-|| 12. The accident occurred on 31.07.2010. At the time of accident, the appellant was aged 55 years. He was working as Assistant Transport Officer in KSRTC and earning a monthly income of Rs.29,815/-. Ext.A9 is the bill for pay and allowances. 13. The document marked as Ext.A5 is the wound certificate and Ext.A7 is the discharge summary. As per medical records, in the accident, the appellant sustained contusion right hand, abrasion right foot and closed fracture medical malleolus right ankle. 14. The document marked as Ext.A8 is the disability **MACA.No.4179 OF 2018** 7 certificate issued by the Medical Board at Medical College Hospital, Thrissur, in which the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 6.2%. As per Ext.A8, the appellant is having difficulty in ascending and descending steps and squatting, flexion and extension of right ankle joint is decreased by 10%. 15. The learned counsel for the appellant would contend that on account of the permanent disability assessed in Ext.A8 disability certificate, the appellant is entitled for grant of disability compensation adding 10% of the notional monthly income towards future prospects. 16. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. **MACA.No.4179 OF 2018** 8 She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a notional monthly income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th **MACA.No.4179 OF 2018** 9 Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC** **422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced **MACA.No.4179 OF 2018** 10 the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 17. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. 18. In the instant case, the permanent whole body **MACA.No.4179 OF 2018** 11 disability of the appellant, on account of the injuries sustained in the accident, is only 6.2%, as assessed in Ext.A8. Considering the nature of disabilities noted in Ext.A8, the appellant is not entitled for assessment of disability compensation, adding future prospects to his notional monthly income. 19. The Tribunal found that the permanent disability that had arisen out the injuries sustained in the accident has not resulted in loss of earning, while the appellant in service. The Tribunal awarded disability compensation taking notional monthly income of the appellant after retirement as Rs.10,000/-, applying the multiplier of 11 applicable to the age group 51 to 55 years and the percentage of permanent disability as 6.2% and accordingly awarded a sum of Rs.81,840/- (10,000 x 12 x 11 x 6.2/100). As on the date of accident, the monthly income of the appellant was Rs.29,815/-. 50% of the said amount can be taken as the notional monthly income of the appellant after his retirement at the age of 55 years. Therefore, the compensation under the head permanent disability can be re-fixed taking a notional monthly income of Rs.14,907/-; applying the multiplier of 9 applicable to the age group of 56 to 60 years. Accordingly, the **MACA.No.4179 OF 2018** 12 compensation under the head permanent disability is re-fixed as Rs.99,817/- (14,907 x 12 x 9 x 6.2/100), resulting an additional compensation of **Rs.17,977/-** (99,817 – 81,840). 20. Towards transportation to hospital, the Tribunal awarded a 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 under this head is re-fixed as Rs. 2,500/-, resulting an additional compensation of **Rs.500/-** (2,500 - 2,000). 21. Towards extra nourishment, the Tribunal awarded a sum of Rs.5,000/-. Towards personal assistance (bystander expenses) the Tribunal awarded Rs.6,000/-. The accident is of the year 2010. 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 these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 22. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2010, the compensation under this head is re-fixed **MACA.No.4179 OF 2018** 13 as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 23. Towards medical expenses, the Tribunal awarded a sum of Rs.25,000/-, covered by Ext.A11 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. 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. 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 and suffering is refixed as Rs.15,000/-, resulting an additional compensation of **Rs.10,000/-** (15,000 - 5,000). 25. Towards loss of amenities, no amount has been awarded by the Tribunal. Considering the nature of injuries sustained and the permanent disability of 6.2% assessed in Ext.A8 disability certificate, this Court deem it appropriate to grant an amount of **Rs.10,000/-** under this head. In the result, the appellant will be entitled for payment of **MACA.No.4179 OF 2018** 14 an additional compensation of **Rs.38,977/-** (Rupees thirty eight thousand nine hundred and seventy seven only) [17,977 + 500 + 500 + 10,000 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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. 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 his bank details (attested copy of the relevant page of the Bank Passbook having details of the Bank 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. **MACA.No.4179 OF 2018** 15 This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** **JUDGE** JV