Unnikrishnan C. v. The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** ## **MACA.No.3932 OF 2019** **AGAINST THE AWARD IN OPMV 1676/2017 DATED 11-10-2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANT:** **UNNIKRISHNAN C., AGED 46 YEARS, S/O. CHAMI, AKSHAY HOUSE, NARAKAPARAMBU, KIZHAKETHARA, ALATHUR TALUK, PALAKKAD DISTRICT-678 571.** **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD., N.S.TOWERS, NEAR STADIUM BUS STAND, COIMBATORE ROAD, PALAKKAD-678 003 REPRESENTED BY ITS MANAGER.** **BY ADV. SRI.GEORGE CHERIAN (SR.) BY ADV. SMT.K.S.SANTHI BY ADV. SMT.LATHA SUSAN CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3932 OF 2019** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.1676 of 2017 on the file of the Motor Accidents Claims Tribunal, Palakkad, 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 14.06.2017, while he was riding a motorcycle bearing registration No.KL-49/F-8953. At the place of accident, the said motorcycle was knocked down by another motorcycle bearing registration No.KL-09/M-8049, owned and ridden by the 1[st] respondent before the Tribunal and insured with the respondent herein. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent before the Tribunal, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,96,000/-, under various heads, which was limited to Rs.2,50,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent/rider filed written statement admitting the accident; however, denying the **MACA.No.3932 OF 2019** -3- negligence alleged against him. It was pointed out that at the time of accident, the vehicle involved in the accident was having valid insurance with the 2[nd] respondent/insurer, at the time of accident. 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. The 2[nd] respondent/insurer filed written statement admitting the insurance coverage of the offending motorcycle involved in the accident; however, denying the negligence alleged against the rider of the offending motorcycle. 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 A17 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 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 riding of the offending motorcycle by its rider. Since insurance coverage of the **MACA.No.3932 OF 2019** -4- 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.58,572/- and the insurer was directed to satisfy the award, together with interest at the rate of 9% per annum from the date of petition till date of deposit, 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 **MACA.No.3932 OF 2019** -5- '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. 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 **MACA.No.3932 OF 2019** -6- ## the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded<br>(in rupees)|Basis/vital details in a<br>nutshell| |---|---|---|---|---| |1|Transportation to hospital|5000|2000|Reasonable amount<br>awarded| |2|Damage to clothing and<br>articles|1000|1000|Reasonable amount<br>awarded| |3|Extra nourishment|2000|1000|Reasonable amount<br>awarded| |4|Bystander's expenses|3000|900|300x3 days (Ext.A13)| |5|Medical expenses|25000|18672|Ext.A14 series| |6|Compensation for pain and<br>suffering|50000|20000|Reasonable amount<br>awarded| |7|Compensation for loss of<br>amenities and enjoyment<br>in life|50000|15000|Reasonable amount<br>awarded| ||Total||**58572**|| 12. The accident occurred on 14.06.2017. At the time of accident, the appellant was aged 45 years. He claimed a monthly income of Rs.40,000/- as Overseer in the Kerala State Electricity Board. Ext.A16 is the leave certificate, which would show that he had availed 62 days medical leave. The Tribunal noticed that the leave availed by the appellant was not leave without allowance. Therefore, no compensation was awarded under the head loss of earnings. 13. As per medical records, the appellant had sustained a fracture to right clavicle and pain all over the body. The document marked as Ext.A12 is the wound certificate. Ext.A13 **MACA.No.3932 OF 2019** -7- is the discharge summary. He had undergone inpatient treatment for a period of three days. Ext.A14 series of medical bills are for a sum of Rs.18,672/-. 14. 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 awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 15. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2017, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** . 16. Towards extra nourishment, the Tribunal awarded a sum of Rs.1,000/-. 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 represents just and reasonable compensation, which require no enhancement in this appeal. **MACA.No.3932 OF 2019** -8- 17. Towards bystander expenses, the Tribunal awarded a sum of Rs.900/- (300 x 3). Considering the fact that the accident is of the year 2017, the compensation under this head is re-fixed as Rs.1,050/- (350 x 3), resulting an additional compensation of **Rs.150/-** (1,050 - 900). 18. Towards medical expenses, the Tribunal awarded a sum of Rs.18,672/-, covered by Ext.A14 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. 19. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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 this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 20. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. Though no disability certificate was produced, the Tribunal awarded a sum of Rs.15,000/- towards loss of **MACA.No.3932 OF 2019** -9- amenities and enjoyment of life. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head cannot also be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 21. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.650/-** (Rupees six hundred and fifty only) [500 + 150] 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 and Legal Benefit Fund. The disbursement of the amount to the appellant shall be in terms of 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** bpr