Motor Accidents Claims; Paul Varghese Vs. Shanveen [Kerala High Court, 10-06-2016]

Motor Vehicles Act, 1988 – Section 168 –¬†A victim in a motor accident, who sustained injuries resulting disabilities has to be adequately compensated for the incidental expenses, including expenses towards future treatment, so as to enable him to recover from the disabilities caused by the tort feasor. However, while awarding just and reasonable compensation under the head future treatment expenses, considering the peculiar nature of the injuries sustained and the attendant circumstances, the Tribunal shall award interest for the said amount only from the date of award and not from the date of claim petition.¬†Similarly, a victim in a motor accident who sustained serious injuries resulting in permanent disability has to be adequately compensated by awarding just and reasonable compensation under the heads extra nourishment, loss of amenities, loss of marriage prospects (if unmarried), loss of studies, etc. While awarding compensation under these heads, in excess of the conventional amounts, the Tribunal has to state valid reasons in order to show that such award of compensation is after careful examination of the facts and circumstances of the case and that it represents just and reasonable compensation.

Motor Accidents Claims Tribunal


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

M.A.C.A.Nos.1225 & 2778 of 2014

DATED THIS THE 10th DAY OF JUNE, 2016

AGAINST THE AWARD IN OPMV 138/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 14-02-2014

APPELLANT/PETITIONER IN O.P.(MV)

PAUL VARGHESE

BY ADVS.SRI.N.SUKUMARAN (SR.) SRI.V.K.BALACHANDRAN

RESPONDENT(S)/RESPONDENTS IN O.P.(MV)

SHANVEEN AND OTHERS

R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SMT.PREETHY R. NAIR R5 BY ADV. SRI.P.JACOB MATHEW SRI.M.A.GEORGE SRI.A.A.ZIYAD RAHMAN

JUDGMENT

ANIL K.NARENDRAN, J.

These appeals arise out of the award passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)No.138 of 2011. M.A.C.A.No.1225 of 2014 is filed by the claimant in that Original Petition, claiming enhancement of the compensation awarded by the Tribunal. On the other hand, M.A.C.A.No.2778 of 2014 is filed by the 2nd respondent insurer of the motor car, contending that the compensation awarded by the Tribunal is highly excessive and as such, it cannot be considered as just and reasonable compensation as contemplated under

Section 168 of the Motor Vehicles Act, 1988

(hereinafter referred to as ‘the Act’).

2. We heard the arguments of the learned Senior Counsel appearing for the appellant/claimant in M.A.C.A.No.1225 of 2014, and the learned Senior Counsel appearing for the appellant/insurer in M.A.C.A.No.2778 of 2014.

3. The appellant in M.A.C.A.No.1225 of 2014 (hereinafter referred to as the claimant) filed O.P.(MV)No.138 of 2011 on the file of the Motor Accidents Claims Tribunal, Ernakulam claiming compensation for the injuries sustained by him in a motor accident occurred on 18.9.2008, involving a motor car bearing registration No.KL-55/B-7770 owned by the 1st respondent in that Original Petition and insured by the 2nd respondent therein (hereinafter referred to as ‘the insurer’). On 18.9.2008, the claimant who was a second year MBBS student at Vinayaka Missions’ Kirupananda Variyar Medical College, Salem was travelling in motor car bearing registration No.KL-55/B-7770 along with his classmates. At about 10 pm, when the car reached near SNMV College Junction, it dashed on the backside of a lorry bearing registration No.TN-30/S- 8592. The driver of the car, namely, Sahil died on the spot. The claimant and one Jose Abraham sustained serious injuries.

4. According to the claimant, immediately after the accident he was admitted in Kovai Medical Centre and Hospital, Coimbatore. He was subsequently taken to Christian Medical College, Vellore and treated there. On 17.4.2009 he was taken to Kessler Institute of Rehabilitation, Philadelphia, USA, where he continued treatment till May, 2010. Thereafter, from June, 2010 onwards he is continuing treatment at several hospitals in Kerala. Alleging that the accident occurred due to the rash and negligent driving of Sahil, he filed claim petition before the Tribunal, claiming a total compensation of 83,26,400/- from the owner and insurer of the motor car.

5. The 1st respondent herein, the owner of the motor car filed written statement denying negligence on the part of Sahil, the driver of that vehicle. According to the 1st respondent, the accident occurred due to the negligence on the part of the driver of the lorry. The motor car was validly insured with the 2nd respondent/insurer and as such, the insurer is liable to indemnify him. He has also disputed the nature of injuries stated in the claim petition and also the quantum of compensation claimed.

6. The 2nd respondent insurer filed written statement, admitting insurance coverage of the motor car involved in the accident. However, they contended that there is violation of policy conditions, inasmuch as the accident was never reported, nor the vehicular documents produced before them for verification. The accident occurred at a junction while the lorry which was going ahead the motor car abruptly stopped and not due to the rash and negligent driving of Sahil. The car hit on the rear side of the lorry and as such, there is composite negligence on the part of the driver of the lorry. The insurer contended that, the compensation claimed is highly excessive and that, the claim is bad for non-joinder of necessary parties. In view of the plea of non-joinder, the driver, owner and insurer of the lorry were impleaded as addl. respondents 3 to 5 in the claim petition.

7. In spite of receipt of notice, addl. respondents 3 and 4 have not chosen to enter appearance before the Tribunal, as such they were set ex parte. The addl. 5th respondent, the insurer of the lorry, filed written statement contending that as per police records, no negligence can be attributed on the driver of the lorry. They have also contended that the compensation claimed is highly excessive.

8. Before the Tribunal, Exts.A1 to A30 were marked on the side of the claimant and the claimant himself was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. The certificate issued by the Medical Board at the Medical College Hospital, Kottayam was marked as Ext.C1.

9. After considering the pleadings and materials on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of Sahil, as he failed to keep safe distance from the lorry going in front of his motor car. Relying on the oral evidence of PW1 and also the records in Crime No.168/08 of Chettipalayam Police Station, Tamil Nadu, the Tribunal concluded that the accident occurred due to the rash and negligent driving of the motor car by Sahil and as such, the claimant is entitled to get compensation from the owner and insurer of that vehicle.

10. The Tribunal awarded 40,25,548/- as compensation under different heads, as against a total claim of 83,26,400/-, and allowed the claimant to realise the said amount together with interest at the rate of 8% per annum from the date of petition till realisation with proportionate cost from the owner and insurer of the motor car, who were held jointly and severally liable to pay the amount of compensation. The compensation awarded by the Tribunal under different heads are as follows;