Vincent Jessil Figarez v. M.N. Chandra Babu; P.J. Yesudas; The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** ## **MACA.No.2418 OF 2010** **AGAINST THE AWARD IN OPMV 622/2006 DATED 29-05-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT:** **VINCENT JESSIL FIGAREZ, S/O.PETER FIGAREZ, AGED 33 YEARS, RESIDING AT PATHISSERY HOUSE, VADUTHALA P.O., CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.C.K. PAVITHRAN** ## **RESPONDENTS:** |**1**|**M.N. CHANDRA BABU,**| |---|---| ||**S/O.NARAYANAN,**| ||**92/B, MARATH HOUSE,**| ||**CHENDRAPPINNI P.O., KANNAMPALLIPPURAM,**| ||**EDATHURUTHY, KODUNGALLOOR.**| |**2**|**P.J.YESUDAS,**| ||**S/O.M.P.JOSEPH,**| ||**THOTTIYIL HOUSE,**| ||**MOTHER TERESA ROAD, KATHRIKADAVU,**| ||**ELAMKULAM, KALOOR P.O.**| |**3**|**THE NATIONAL INSURANCE CO. LTD.**| ||**REPRESENTED BY ITS MANAGER,**| ||**MOTOR THIRD PARTY CLAIMS CELL,**| ||**AJAY VIHAR, ERNAKULAM.**| ## **SRI LAL GEORGE- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2418 OF 2010** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.622 of 2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 07.08.2004, while he was riding a motorcycle bearing registration No.KL-7/J-5493. At the place of accident, the 2[nd] respondent driver suddenly opened the right front door of a motorcar bearing registration No.KL-8/U-9403 parked on the side of the road. The scooter ridden hit on opened the door. The appellant/claimant fell down and sustained injuries. The said motorcar was owned by the 1[st] respondent and insured with the 3[rd] respondent. Alleging that the accident occurred due to the negligence of the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,36,000/-, under various heads, which was limited to Rs.2,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 filed joint **MACA.No.2418 OF 2010** -3- written statement admitting the accident; however, denying negligence alleged against the 2[nd] respondent driver. They contended that the accident occurred due to the rash and negligent riding of the motorcycle by the appellant/claimant himself. It was pointed out that the vehicle involved in the accident was having valid insurance with the 3[rd] 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 3[rd] respondent/insurer filed written statement admitting the insurance coverage of the offending motorcar; however, denying the negligence alleged against the 2[nd] 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 A7 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 5. After considering the pleadings and materials on **MACA.No.2418 OF 2010** -4- record, the Tribunal arrived at a conclusion that the accident occurred due to the negligence of the 2[nd] respondent driver. Since insurance coverage of the 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.24,479/-, and the insurer was directed to satisfy the award, with interest at the rate of 7.5% per annum from the date of petition, i.e., 26.10.2005 till realisation, together 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 Sri.Lal George, the learned Standing Counsel for the 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 30.10.2019. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of **MACA.No.2418 OF 2010** -5- 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 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 **MACA.No.2418 OF 2010** -6- 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.|Heads|Amount claimed<br>(in Rupees)|Amount awarded<br>(in Rupees)| |---|---|---|---| |1|Loss of earning from 07.08.2004|15,000/-|3,000/-| |2|Partial loss of earnings|5,000/-|….....| |3|Transport to hospital|2,000/-|500/-| |4|Extra nourishment|2,000/-|500/-| |5|Damage to clothing and articles|2,000/-|500/-| |6|Medical expenses|30,000/-|10,979/-| |7|Attendant expenses|10,000/-|1,000/-| |8|Loss of amenities and enjoyment<br>in life|35,000/-|3,000/-| |9|Compensation for pain and<br>suffering|40,000/-|5,000/-| |10|Compensation for continuing for<br>permanent disability|45,000/-|…......| |11|Compensation for loss of earning<br>power|50,000/-|…......| ||**Total**|2,36,000/-|24,479/-| ||Claim limited to Rs.2,00,000/-||| **MACA.No.2418 OF 2010** -7- 12. The accident occurred on 07.08.2004. At the time of accident, the appellant was aged 33 years. The appellant claimed a monthly income of Rs.3,000/- as Interior Decoration Worker. 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. Even in the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. 13. The document marked as Ext.A2 is the wound certificate and Ext.A6 is the discharge summary. As per medical records, the appellant had sustained fracture to his left wrist. The nature of fracture is noted as anterior bartons fracture. He had undergone inpatient treatment for a period of 10 days from 07.08.2004 to 16.08.2004. Ext.A7 series of medical bills are for a sum of Rs.10,979/-. 14. Towards loss of earning, the Tribunal awarded a sum of Rs.3,000/- for a period of 1 month. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 1 month fixed by the Tribunal for granting loss of earning is re- **MACA.No.2418 OF 2010** -8- fixed as 4 months. Since the monthly income of the appellant, fixed by the Tribunal is Rs.3,000/-, the compensation under the head loss of earning is re-fixed as Rs.12,000/- (3,000 x 4), resulting an additional compensation of **Rs.9,000/-** (9,000 - 3,000). 15. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 10 days. Towards transport to hospital, the Tribunal awarded a sum of Rs.500/-. The accident is of the year 2004. 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.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500). 16. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 10 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head extra nourishment **MACA.No.2418 OF 2010** -9- is re-fixed as Rs.1,000/- (100 x 10), resulting an additional compensation of **Rs.500/-** (1,000 - 500). 17. The Tribunal awarded no amount towards bystander expenses. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.1,500/-** (150 x 10) as compensation under this head. 18. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 19. Towards medical expenses, the Tribunal awarded a sum of Rs.10,979/-, covered by Ext.A7 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.5,000/-. Considering the nature **MACA.No.2418 OF 2010** -10- 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.5,000/-** (10,000 - 5000). 21. Towards loss of amenities and enjoyment of life, the Tribunal awarded a sum of Rs.3,000/-. Though no materials were produced by the appellant to prove any permanent disability on account of the injuries sustained in the accident, considering the nature of injuries, the compensation awarded by the Tribunal under this head re-fixed as Rs.5,000/-, resulting an additional compensation of **Rs.2,000/-** (5,000 - 3,000). 22. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.19,500/-** (Rupees twenty one thousand seven hundred fifty only) [9,000 + 1,000 + 500 + 1,500 + 500 + 5,000 + 2,000] 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 **MACA.No.2418 OF 2010** -11- 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 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr