Yamuna v. Aswath G. and Bharath & The New India Assurance Co Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **MACA.No.3863 OF 2017** **AGAINST THE AWARD IN OPMV 310/2015 DATED 05-08-2017 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANT/PETITIONER:** **YAMUNA, AGED 70 YEARS, W/O POOVAPPA, CHAKRATHIRTHA HOUSE, KUNJATHUR, MANJESHWAR TALUK, KASARGOD -671323** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENTS/RESPONDENTS:** **1 ASWATH G., AGED 32 YEARS, S/O RAMACHANDRA, HOUSE NO.3/53, DEVI PURA, TALAPADY PO, MANGALOORE TALUK, D.K DISTRICT. 2 BHARATH, AGED 36 YEARS, S/O RAMCHANDRA, HOUSE NO.116/1, GOLIDADI HOUSE, KUNJATHUR, MANJESHWAR VILLAGE, KASARAGOD-671323 3 THE NEW INDIA ASSURANCE CO LTD 1215,12TH FLOOR, NAURANGA HOUSE, 21 KASTHURBA GANDHI MARG,NEW DELHI-110001 R3 BY ADV. SRI.P.MURALEEDHARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3863 of 2017 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.310 of 2015 on the file of the Motor Accidents Claims Tribunal, Kasaragod, 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 12.03.2015, while she was travelling in an autorikshaw bearing registration No.KL-14/B5963. At the place of accident, a car bearing registration No.KL14/Q-482 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent, came from behind and overtook the autorikshaw. The driver of the autorikshaw applied break and the appellant was thrown out of that vehicle. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,32,000/- under various heads, which was limited to Rs.4,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent driver did not file any written statement. The 2[nd] respondent owner remained absent and he was set ex parte. MACA No.3863 of 2017 3 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the car involved in the accident; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the accident occurred due to the rash and negligent driving autorikshaw by its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A5 were marked on the side of the appellant/claimant. The document marked as Ext.X1 is the disability certificate issued by the Medical Board at the District Hospital, Kanhangad. The respondents have not chosen to adduce any oral or documentary 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 driving of the car 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.68,300/-, together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate MACA No.3863 of 2017 4 cost, and the 3[rd] respondent 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 3[rd] 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.3863 of 2017 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.No.|||Amount awarded<br>(in Rs.)|| |---|---|---|---|---| |1|Loss of earnings||--|| |2|Partial loss of earnings||--|| |3|Transport to hospital||1,000|| |4|Extra nourishment||--|| |5|Damage to clothing and<br>articles||500|| MACA No.3863 of 2017 6 |6|Treatment expenses||33300|| |---|---|---|---|---| |7|Bystander expenses||1,000|| |7|Pain and suffering||12,500|| |8|Permanent disability||--|| |9|Loss of amenities and<br>convenience of life||20,000|| ||Total||68300|| 12. The accident occurred on 12.03.2015. At the time of accident, the appellant was aged 68 years. The appellant claimed a monthly income of Rs.10,000/-. In the claim petition, the occupation of the appellant is mentioned as 'land holder'. Going by the averments in paragraph 28 of the claim petition, the appellant was earning income out of agricultural produce from her property. On account of the injuries sustained in the accident, she is not in a position to continue her work properly and generate sufficient income. 13. The document marked as Ext.A3 is the wound certificate issued from City Hospital Research and Diagnostic Center, Manglore and Ext.A4 is the discharge summary. As evident from medical records, in the accident, the appellant sustained fracture right proximal phalanx half middle finger with open wound and undisplayed fracture right styloid of radius. She had undergone inpatient treatment for a period of 5 days. Ext.A5 series of medical bills are for a sum of Rs.33,288/-. MACA No.3863 of 2017 7 14. The document marked as Ext.X1 is the medical certificate issued by the Medical Board at District Hospital, Kanhangad, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, as 3%. The injuries noted in Ext.X1 disability certificate are reddish abrasion of 3cm x 2cm on the right side of forehead; reddish contusion of 12cm x 7cm on the right shoulder; swelling and deformity of right wrist with a laceration of 3cm x 1cm x mulcle deep on the first web space with underlying fracture of styloid process of radius with fracture of proximal phalynx of right middle finger; and reddish contusion of 8cm x 5cm on the lower 1/3[rd] of right thigh. Closed reduction and K-wire fixation of right hand were done. On examination, the Medical Board found that fracture united with mild pain during flexion of middle finger. Accordingly, in Ext.X1 disability certificate the Medical Board assessed 3% permanent locomotor disability. 15. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 5 days. The accident is of the year 2015. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the treatment the appellant had MACA No.3863 of 2017 8 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.1,000/-** (2,000 – 1,000). 16. Towards bystander expenses the Tribunal awarded Rs,1,000/-. Towards extra nourishment, the Tribunal awarded no compensation. The accident is of the year 2015 and the appellant had undergone inpatient treatment for 5 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 bystander expenses is re-fixed as Rs.1,250/- (250 x 5), resulting an additional compensation of **Rs.250/-** (1,250 – 1,000). The appellant is granted a sum of **Rs.1,000/-** (200 x 5) towards extra nourishment. 17. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. The accident is of the year 2015. Therefore, the compensation under this head is re-fixed as Rs.1,250/-, resulting an additional compensation of **Rs.750/-** (1,250 - 500). 18. Towards medical expenses, the Tribunal awarded a sum of Rs.33,300/-, covered by Ext.A5 series of medical bills. In the absence of any further materials, the compensation awarded MACA No.3863 of 2017 9 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.12,500/-. 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.20,000/-, resulting an additional compensation of **Rs.7,500/-** (20,000 – 12,500). 20. The Tribunal awarded no compensation under the head permanent disability. The Tribunal awarded Rs.20,000/- towards loss of amenities. In Ext.X1 disability certificate, the Medical Board found that fracture united with mild pain during flexion of right middle finger. In Ext.X1, the Medical Board assessed 3% permanent locomotor disability, which cannot be treated as a whole body disability. Considering the nature of disabilities noted in Ext.X1, the compensation awarded by the Tribunal under the head loss of amenities is scaled down to Rs.5,000/-, which would represent just and reasonable compensation under that head. The excess amount of Rs.15,000/- is granted as lump sum compensation under the head permanent disability, for 3% MACA No.3863 of 2017 10 permanent locomotor disability assessed in Ext.X1. 21. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.10,500/-** (Rupees ten thousand and five hundred only) [1,000 + 250 + 1,000 + 750 + 7,500] 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 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 insurer shall also deduct the liability of the appellant/claimant towards additional court fee in this appeal, in view of the amendment made to sub-rule (3) of Rule 397 of the Kerala Motor Vehicles Rules, 1989, with effect from 16.01.2015, and the same shall be deposited before this Court. Registry shall calculate the additional court fee payable in this appeal and a statement to that effect shall also be enclosed along with the certified copy of this judgment. 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 MACA No.3863 of 2017 11 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 her bank details 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** JV **JUDGE**