Adarsh Babu (Minor) v. Sajiomon P.B. and The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 24TH DAY OF JANUARY 2018 / 4TH MAGHA, 1939** **AGAINST THE AWARD DATED 09-01-2008 IN OPMV NO. 926/2005 of MACT, PALA** **APPELLANT/PETITIONER:-** **-----------------------** **ADARSH BABU (MINOR), D/O. BABU C., AGED 7 YEARS, REPRESENTED BY HER FATHER AND GUARDIAN BABU C.M., CHAKKANIKUNNEL, THODANAL P.O., PALA.** **BY ADV.SRI.P.C.HARIDAS** ## **RESPONDENTS/RESPONDENTS:** **-----------------------** **1. SAJIOMON P.B., S/O. BHASKARAN, PURAKKUNNEL HOUSE, MANAKKUNNU BHAGOM P.O., MEENACHIL VILLAGE.** **2. THE NEW INDIA ASSURANCE CO. LTD.,** - **PALA, REPRESENTED BY ITS BRANCH MANAGER.** **R2 BY ADV. SRI. RENIL ANO KANDAMKULATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = M.A.C.A.No.2363 of 2008** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 24[th] day of January, 2018_ ## **J U D G M E N T** The appellant was the petitioner in O.P.(MV) No.926 of 2005 on the files of the Motor Accidents Claims Tribunal, _(hereinafter referred to as 'the Tribunal')_ , Pala and the respondents are the respondents therein. The said petition was filed under Section 166 of the Motor Vehicles Act, 1988 _(hereinafter referred to as 'the M.V. Act')_ , claiming compensation for the injuries sustained by the appellant in a road traffic accident. The parties are referred to as in the Original Petition. 2. The petitioner was a minor aged four years, represented by her father. The case of the petitioner is that on 07.01.2005 at 4.00 pm, while the petitioner was travelling in an autorikshaw bearing Registration No.KL-5/G-9088 to her house ## **M.A.C.A.No. 2363 of 2008** ## **-: 2 :-** from Kanjiramattom school, when the vehicle reached at Kappilikunnu bhagom the vehicle overturned due to the rash and negligent driving of the 1[st] respondent and in that accident she sustained grievous injuries. The 1[st] respondent is the owner of the autorikshaw also. Immediately after the accident, she was taken to Matha Hospital, Thellakom, where she was given first aid and then she was referred to Specialist Hospital, Ernakulam. In the said hospital, she was admitted as an inpatient from 07.01.2005 to 26.02.2005. During the said period, she had undergone several surgeries. During the period, she suffered severe pain, even after the discharge, treatment continued and even at the time of filing the application she was undergoing treatment. 3. The 1[st] respondent filed a written statement challenging the quantum of compensation claimed ## **M.A.C.A.No. 2363 of 2008** ## **-: 3 :-** under various heads and denying the rash and negligence in driving the vehicle attributed against him. 4. The 2[nd] respondent also filed a written statement disputing the claim of the petitioner under various heads. It was also contended that there was a violation of policy conditions and thereby they are not liable to indemnify the 1[st] respondent. 5. On the aforesaid rival pleadings, both parties adduced evidences, which consists of Exts.A1 to A23, B1, B2 and X1. 6. Though no oral evidence was adduced during the course of trial, the petitioner was produced before the Tribunal and the Tribunal personally examined the petitioner, so as to verify the correctness and nature of the injuries and consequential disabilities alleged in the petition ## **M.A.C.A.No. 2363 of 2008** ## **-: 4 :-** and got satisfied. Thereafter, passed the impugned award granting Rs.4,31,505/- as compensation. The inadequacy and correctness of the quantum of compensation alone are assailed in this appeal filed by the petitioner. 7. Heard the learned counsel for the petitioner. 8. The learned counsel for the petitioner advanced arguments highlighting the inadequacy of the quantum of compensation granted for permanent disability resulting in 'loss of earnings capacity', 'pain and sufferings', 'loss of amenities', 'loss of marriage prospects' and 'medical expenses'. In order to support the inadequacy pointed out, the learned counsel cited two decisions of the Hon'ble Apex Court in _**Master Mallikarjun v. Divisional Manager, the National Insurance Company Ltd. and Another**_ [2013 3 KLJ 815] and another decision of this Court **M.A.C.A.No. 2363 of 2008** ## **-: 5 :-** in _**ICICI Lombard General Insurance Co. Ltd. v. Amith Varghese**_ [2017 (2) KLT 8]. The learned counsel drew my attention to paragraphs 8 to 12 of the aforesaid judgment and contended that in the said decision the Supreme Court had drawn a special yardstick for measuring the disabilities of child victims. 9. It is further contended that in order to arrive just compensation contemplated under Section 168 of the M.V. Act, the power of the court is unlimited and unfettered and thereby the Tribunal can go beyond the compensation fixed generally under the conventional heads, in the case of child victims. Thus, according to the learned counsel, in the light of the yardstick laid down by the Hon'ble Apex Court in the above decision, it could be seen that the quantum of compensation granted to the petitioner under the aforesaid heads are inadequate **M.A.C.A.No. 2363 of 2008** ## **-: 6 :-** and disproportionate with the grievous nature of the injuries suffered by her and the consequential disabilities resulted therefrom. 10. I have meticulously gone through the decision of the Apex Court in _**Master Mallikarjuna's case**_ (supra) and I find that apart from the conventional methods of measuring the damages caused to a victim in a road accident, in this decision, the Supreme Court has laid down a specific guideline for measuring damages caused to the body of a child victim for granting compensation for such damages. It is apposite and profitable to extract the relevant paragraphs, which reads as given below: _"8. It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd. and Others, 1995 (1) SCC 551, while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering_ **M.A.C.A.No. 2363 of 2008** **-: 7 :-** _already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non- earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non- pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc._ _12. Though it is difficult to have an accurate_ **-: 8 :-** ## **M.A.C.A.No. 2363 of 2008** _assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents._ 11. Further, this Court relied on the guidelines issued by the Hon'ble Supreme Court in _**Master Mallikarjuna's case**_ (supra) in the decision laid down by the Division Bench of this Court in _**ICICI Lombard General Insurance Co. Ltd. v. Amith Varghese**_ [2017 (2) KLT 8]. 12. The sum and substance of the proposition laid down by this Court in the above decision is ## **M.A.C.A.No. 2363 of 2008** ## **-: 9 :-** that the damages so awarded should be adequate and some money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. The compensation is therefore required to be paid for prospective pecuniary loss, i.e, future loss of income/dependency suffered on account of the wrongful act. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely. Pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non-pecuniary losses on account of loss of happiness, pain, suffering and expectancy of life, etc, particularly, when the Act provides for payment of “just **M.A.C.A.No. 2363 of 2008** ## **-: 10 :-** compensation”. 13. Coming to the quantum of compensation granted in the instant case under various heads, it could be seen that for the medical expenses and accommodation charges, the Tribunal has granted Rs.1,02,095/-, though the petitioner had produced bill for Rs.1,98,287/-. Going by the reasoning of the Tribunal, it is stated that, out of Rs.1,98,287/-, the bills for Rs.1,03,000/pertaining to bill Nos. 57, 58, 87, 88, 89, 90, 84 and 83 are advance payments and those bills have not seen issued for actual expenses incurred by the petitioner. The actual amount paid towards expenses is Rs.95,287/- only. Therefore, the petitioner is entitled to an amount of Rs.95,000/- under the head medical expenses. 14. The learned counsel for the petitioner contends that the actual amount paid shown as ## **M.A.C.A.No. 2363 of 2008** ## **-: 11 :-** Rs.95,287/- is the amount after deducting and adjusting the entire amount of Rs.1,03,000/- paid in advance. Therefore, though the entire advance amount also was adjusted towards the actual expenses and issued bills for the remaining balance to be paid as Rs.95,287/-, the Tribunal has taken Rs.95,287/- only as the amount spent for treatment. But going by the said reasoning, it could be seen that no evidence was adduced to prove that Rs.1,03,000/- which was paid in advance was also deducted and adjusted towards the final bill and Rs.95,287/- was the balance amount to be paid. The learned counsel invited my attention to bill No.73 which was issued for a total amount of Rs.25,536/- and pointed out that in that bill it is specifically stated that the balance to be paid is only Rs.5,536/-, after adjusting Rs.20,000/- which was paid in advance, before the treatment. Thus, out of the total ## **M.A.C.A.No. 2363 of 2008** ## **-: 12 :-** advance amount of Rs.1,03,000/-, Rs.20,000/- was deducted adjusted towards a total sum of Rs.25,536/-. But, the Tribunal omitted to consider the said deduction made from the advance amount. The learned counsel handed over a copy of the said bill to me and I have verified the bill. On a perusal of the said bill No.73, it could be seen that as rightly submitted by the learned counsel for the petitioner, an amount of Rs.20,000/- was deducted and adjusted towards the total sum of Rs.25,536.50 from the advance payment and the balance amount payable was Rs.5,536.50 only. Thus, in this bill, out of Rs.1,03,000/- which was paid in advance. Rs.20,000/- was deducted and adjusted towards Rs.25,536.50. Thus, it stands to prove that a sum of Rs.20,000/- was also spent for treatment in addition to the amount already granted under the head of medical expenses. In short, the petitioner **M.A.C.A.No. 2363 of 2008** ## **-: 13 :-** is entitled to get Rs.20,000/- more under the head of medical expenses, in addition to Rs.1,02,095/-. 15. In the impugned award, Rs.1,08,000/- is granted for permanent partial disability resulting in loss of earning capacity and the said amount was calculated on the basis that at the time of accident, the petitioner was getting a notional income of Rs.1,500/- and he was suffered 40% permanent disability and the multiplier applicable to the petitioner is 15. 16. In paragraph 12 of the judgment in Master Mallaikarjun's case, the Supreme Court has issued a guideline stating that in the case of child victims, who had suffered severe injuries, the main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should ## **M.A.C.A.No. 2363 of 2008** ## **-: 14 :-** enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. 17. The Supreme Court re-fixed compensation at Rs.4,00,000/- as lump sum amount for permanent disability, pain and suffering already suffered and that are likely to be suffered in future, mental and physical shock, hardship, inconvenience, discomfort etc and loss of amenities in the case of child victim who suffered disability above 30%. In view of the above guideline, this Court is also inclined to re-fix the quantum of compensation for pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconveniences, discomfort etc. and loss of amenities in life on account of permanent disability at Rs.4,00,000/- as the petitioner was aged 4 years **M.A.C.A.No. 2363 of 2008** ## **-: 15 :-** only at the time of accident and the Tribunal had fixed the percentage disability at 40% with the support of the certificate issued by the Medical Board. This lump sum amount of Rs.4,00,000/- is given instead of Rs.1,08,000, Rs.25,000/- and Rs.25,000/- given under the heads of loss of earning capacity, pain and suffering and loss of amenities respectively. The victim is a girl, aged 4 years only at the time of accident. Therefore, her future prospects including marriage etc. also deserves to be considered while considering the quantum of compensation. The Tribunal granted Rs.50,000/towards loss of marriage prospects. This Court of the view that the said amount is inadequate and the same is stand enhanced to Rs.1,00,000/-. Thus, the petitioner is entitled to get a total sum of Rs.7,43,505/- (1,02,095 + 7,500 + 1,000 + 250 + 3,000 + 4,00,000 + 1,00,000 + 1,09,660 + 20,000) ## **M.A.C.A.No. 2363 of 2008** ## **-: 16 :-** with interest as stipulated by the Tribunal. All other findings in the impugned award will stand undisturbed and operative. Accordingly, this MACA stands allowed. Sd/- **K. HARILAL** **JUDGE** DST/Scl //True copy// P.A. To Judge