Vishnu (Minor) vs Prasannan and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941** ## **MACA.No.2300 OF 2008** **AGAINST THE AWARD IN O.P.(MV) NO.1359/2001 DATED 13-12-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/CLAIMANT:** **VISHNU (MINOR), AGED 13 YEARS, REPRESENTED BY HIS FATHER & LEGAL GUARDIAN U.V.PREMAN, S/O.NARAYANAN NAIR, AGED 52 YEARS, RESIDING AT, CHERUVAYALIL HOUSE, KAKKODI.P.O, MOOTTOLI, KOZHIKODE.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENTS/RESPONDENTS:** **1 PRASANNAN, RESIDING AT THATTARAKANDI HOUSE, B.G.ROAD, P.O.WEST HILL, B.G.ROAD, P.O.WESTHILL, KOZHIKODE (OWNER OF THE AUTORIKSHAW NO.KL-11/G-7857) 2 THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE -II, PRAMOD BUILDINGS, 2ND FLOOR, CHEROOTTY ROAD, KOZHIKODE. (INSURER OF THE AUTORIKSHAW NO.KL-11/G-7857) R1 BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2300 of 2008 -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.1359 of 2001 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 him in a motor accident, which occurred on 09.09.2014, while he was walking along with the side of a public road. At the place of accident he was knocked down by an autorickshaw bearing registration No.KL-11/G7857, owned by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the claimant, who was then a minor aged 6 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the autorickshaw by its driver, 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 owner has not chosen to enter appearance. The 2[nd] respondent insurer filed written statement denying the liability to indemnify the 1[st] respondent owner of the autorickshaw involved in the MACA No.2300 of 2008 -3- accident. In insurer contended that, there is violation of the conditions of policy, since the driver of the autorickshaw was not holding a valid driving licence. The insurer contended further that the compensation claimed under various heads is on the higher side. 3. Before the Tribunal, Exts.A1 and A2 were marked on the side of the claimant. Exts.B1 and B2 were marked on the side of the respondents. 4. 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 autorickshaw by its driver. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Since the driver of the autorickshaw was charge sheeted by the police for not holding a valid driving licence, the Tribunal held that there is violation of the conditions of policy and as such, the 2[nd] respondent insurer is entitled to recover the amount of compensation paid to the claimant, by proceeding against the 2[nd] respondent owner. Under various heads, the Tribunal awarded a total MACA No.2300 of 2008 -4- compensation of Rs.10,500/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation and the insurer was directed to satisfy the award and get it revered by proceeding against the 1[st] respondent owner. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. 7. 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. 8. 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.2300 of 2008 -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. 9. 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 nonviolation of the principle of equitability. MACA No.2300 of 2008 -6- 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount awarded<br>(in rupees)| |---|---|---| |1|Medical bills|2,000/-| |2|Incidental charges|1,000/-| |3|Pain and suffering|7,000/-| |4|Transportation|500/-| ||**TOTAL**|**10,500/-**| 11. The accident occurred on 07.12.2000. At the time of accident, the appellant was a minor aged 6 years. 12. The document marked as Ext.A1 is the reference card. In the accident, the appellant sustained Grade III comminuted fracture left leg, lacerated wound 2x1x1cm left leg anterior aspect middle third and left heel region, lacerated wound 2x1x0.5cm upper lip, and contusion chest. He had undergone inpatient treatment for a period of 12 days. Ext.A2 series of medical bills are for a sum of Rs.6,241/-. The Tribunal granted a sum of Rs.2,000/- towards medical expenses. 13. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. The accident is of the year 2000. On account of the injuries sustained in the accident, the MACA No.2300 of 2008 -7- appellant had undergone inpatient treatment for 12 days. 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.2,000/-, resulting an additional compensation of **Rs.1,500/-** (2,000 - 500). 14. Towards incidental charges, the Tribunal awarded a consolidated sum of Rs.1,000/-. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 12 days. The accident is of the year 2000. Considering the nature of injuries sustained and the treatment the appellant had undergone, he is granted Rs.1,800/- (150 x 12) towards bystander expenses; Rs.1,200/- (100 x 12) towards extra nourishment; and Rs.750/- towards damage to clothing, resulting an additional compensation of **Rs.2,750/-** [(1,800 + 1,200 +750) – 1,000]. 15. Towards medical expenses, the Tribunal awarded a sum of Rs.2,000/-. Ext.A2 series of medical bills are for a total sum of Rs.6,241/-. In the absence of any dispute raised by MACA No.2300 of 2008 -8- the 2[nd] respondent insurer, the compensation under this head is re-fixed as Rs.6,241/-, resulting an additional compensation of **Rs.4,241/-** (6,241 - 2,000). 16. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.7,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.8,000/-** (15,000 - 7,000). 17. The Tribunal awarded no compensation under the heads permanent disability or loss of amenities. 18. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** the Apex Court held that, the provisions of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The Court or the Tribunal shall have to assess the MACA No.2300 of 2008 -9- damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: ## Pecuniary damages (Special damages) - (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. - (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: - (a) Loss of earning during the period of treatment; - (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. ## - Non pecuniary damages (General damages) - (iv) Damages for pain, suffering and trauma as a consequence of the injuries. MACA No.2300 of 2008 -10- (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 19. No materials were placed before the Tribunal to prove that, the injuries sustained in the accident had resulted in any permanent disability. In the absence of any such materials, the case of the appellant can only be treated as a routine personal injury case, in which no compensation can be granted under the heads permanent disability or loss of amenities 20. In the result, the appellant/claimant will be entitled MACA No.2300 of 2008 -11- for payment of an additional compensation of **Rs.16,491/-** (Rupees sixteen thousand four hundred and ninety one only) [1,500 + 2,750 + 4,241 + 8,000] 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 claimant towards Balance Court Fee and Legal Benefit Fund. The 2[nd] respondent insurer will be entitled to recover the said amount by proceeding against the 1[st] respondent owner. 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/claimant shall provide his 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 MACA No.2300 of 2008 -12- Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr