Usha Kumari N.P. v. Sivadasan T. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** ## **MACA.No.2911 OF 2008** **AGAINST THE AWARD IN OP(MV) No.1765/2002 DATED 18-12-2007 OF PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** **USHA KUMARI N.P.W/O. SURESH KUMAR AGED 38 YEARS, L.E 12, MEDICAL COLLEGE QUARTERS,, MEDICAL COLLEGE.P.O, KOZHIKODE - 673 008.** **BY ADVS. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN** ## **RESPONDENT/S:** **1 SIVADASAN T.,S/O.CHATHUKUTTY, AGE NOT KNOWN KUNIYIL HOUSE, CHELANNUR.P.O,KAINNANKKARA VIA,, KAKKODI, KOZHIKODE. 2 THE NEW INDIA ASSURANCE COMPANY LTD. TRIPURI BUILDING, EAST NADAKKAVU,, CALICUT-11. 3 C.P. HARIS S/O. AHAMMED ROSE MAHAL, DRIVING SCHOOL,, CHEVAYOOR, CALICUT-7. 4 THE ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE-II,, PRASAD BUILDING IIND FLOOR,, CHEROOTY ROAD, CALICUT. R1 BY ADV. DR.ELIZABETH VARKEY R1 BY ADV. SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2911 of 2008 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1765 of 2002 on the file of the Motor Accidents Claims Tribunal, Kozhikode, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 15.09.2001, while she was travelling in an autorickshaw bearing registration No.KL-11/J-2763 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the autorickshaw was hit by a Tata Sumo bearing registration No.KL-11/M-9303 owned and driven by the 3[rd] respondent and insured with the 4[th] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-under various heads. 2. Before the Tribunal, the 1[st] respondent did not file any written statement. The 2[nd] respondent insurer filed written -3- MACA. No. 2911 of 2008 statement admitting the insurance coverage of the Tata Sumo involved in the accident; however denying the negligence alleged against the 1[st] respondent driver. The insurer contended that the accident occurred due to rash and negligent driving of the autorickshaw by its driver. 3. The 3[rd] and 4[th] respondents filed separate written statements contending that the accident occurred due to the rash and negligent driving of the autorickshaw. 4. Before the Tribunal, Exts.A1 to A4 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. 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 autorickshaw by its 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.18,000/- together with -4- MACA. No. 2911 of 2008 interest at the rate of 7.5% per annum from 13.06.2002, till realisation, and the insurer was directed to satisfy the award. 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 2[nd] 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 -5- MACA. No. 2911 of 2008 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 -6- MACA. No. 2911 of 2008 ## the Tribunal under various heads reads thus; |Medical bills|1500| |---|---| |Incidental charge|1000| |Pain and suffering|8000| |Loss of amenity|4000| |Loss of earning|3000| |Transportation|500| ||--------------| ||18,000| ||=========| 12. The accident occurred on 15.09.2001. At the time of accident, the appellant was aged 32 years. The appellant claimed a monthly income of Rs.6,000/- as Confidential Assistant in Medical College. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. 13. The document marked as Ext.A2 is the wound certificate. As per which, she sustained fracture to both bones to right leg and other injuries including lacerated wounds. She had undergone inpatient treatment for a period of 4 days. 14. Pursuant to the reference made by the Tribunal on -7- MACA. No. 2911 of 2008 16.12.2004, the Medical Board at the Government Medical College Hospital, Kozhikode, assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 10%. The disability noted in that medical certificate is stiffness of ankle. In the disability certificate, it is noted that the appellant is not having any occupational disability, since she is a Confidential Assistant. 15. Towards loss of earning, the Tribunal awarded a sum of Rs.3,000/-. The appellant was working as Confidential Assistant in Medical College. In the absence of any material to prove actual loss of earning the compensation awarded by the Tribunal under this head cannot be said to be on the lower side. 16. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 4 days. The accident is of the year 2001. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from -8- MACA. No. 2911 of 2008 medical records, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,000 - 500). 17. Towards incidental charges, the Tribunal awarded a sum of Rs.1,000/-. The accident is of the year 2001 and the appellant had undergone inpatient treatment for 4 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the appellant is entitled for Rs.6,00/- (150 x 4) under the head bystander expenses and Rs.400/- (100 x 4) under the head extra nourishment. Therefore the compensation of Rs.1,000/- granted under the head incidental charges represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards damage to clothing and articles, no compensation has been awarded by the Tribunal. Considering the fact that the accident is of the year 2001, this Court deem it appropriate to grant compensation under the head as **Rs.750/-** . -9- MACA. No. 2911 of 2008 19. Towards medical expenses, the Tribunal awarded a sum of Rs.1,500/-, covered by Ext.A4 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. 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.8,000/-. 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 re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.2,000/-** (10,000 – 8,000). 21. Towards loss of amenities the Tribunal awarded a sum of Rs.4,000/-. In disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. However, it is noted that she is not having any occupational disability, since she is a Confidential Assistant. Considering the nature of injuries -10- MACA. No. 2911 of 2008 sustained and 10% permanent disability on account of those injuries assessed in the disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.3,500/-** (7,500 – 4,000). 22. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.7,250/-** (Rupees seven thousand two hundred and fifty only) [1,000 + 750 + 2,000 + 3,500] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] 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 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 -11- MACA. No. 2911 of 2008 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide her bank account 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. This appeal is disposed of as above. No order as to costs. **Sd/ANIL K.NARENDRAN JUDGE** das