Afsal C.M. v. Reshmy Arunkumar, Vrinda Vyshnavam and Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938 MACA.No. 1233 of 2016 () ------------------------- AGAINST THE AWARD IN OPMV 193/2014 of M.A.C.T.,ERNAKULAM DATED 23-122015 APPELLANT(S)/CLAIMANT: --------------------- AFSAL C.M., S/O.MAHIN AGED 20, CHELATTU CHEMPALAYIL HOUSE, THALAPPARA BHAGOM, THALAYOLAPARAMBU P.O, VADAYAR VILLAGE, KOTTAYAM DISTRICT. BY ADVS.SRI.MATHEWS K.PHILIP SMT.MINISHA K DAS RESPONDENT(S)/RESPONDENTS: -------------------------- 1. RESHMY ARUNKUMAR, W/O.ARUNKUMAR KUZHIMATTOM HOUSE, MANNARKAYAM P.O., CHIRAKKADAVU, KOTTAYAM -686 507. 2. VRINDA VYSHNAVAM, KUDAMALLOOR P.O., KOTTAYAM DISTRICT -686 017. 3. ORIENTAL INSURANCE COMPANY LIMITED 3RD FLOOR, MATTETHARA BUILDING, BACKER JUNCTION, M.C.ROAD, KOTTAYAM DISTRICT -686 001. R3 BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1233 of 2016 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] June, 2016** ## **JUDGMENT** ## **K. Ramakrishnan, J.** The claimant in O.P.(MV) No.193 of 2014 on the file of the Motor Accidents Clams Tribunal, Ernakulam is the appellant herein. The appellant as minor, filed the application for compensation for the injuries sustained by him in a motor accident occurred on 13.9.2013 at about 11.50 p.m.. According to the claimant, he was travelling in a motor bike with No.KL-36/C 7018 driven by the claimant in O.P.(MV) No.190 of 2014 before the tribunal through Thalayolaparambu - Kanjiramattom road and when it reached near Chalakkapara Thykavu Gama Junction Bhagom, a maruthi omni vehicle with No.KL-05/V 3635 driven by the first respondent, owned by the second respondent and insured with the third respondent came in a rash and negligent manner and hit against the motor cycle in which the claimant was travelling. According to the claimant, the accident occurred due to the negligent driving of the vehicle by the first respondent and respondents 1 to 3 are jointly and severally liable to pay compensation. He sustained severe injuries and suffered disability. He was aged only 16 years at the time of accident and claimed a total compensation of Rs.4,00,000/- MACA 1233/2016 2 on various heads. 2. First respondent remained absent and set ex-parte. 3. The second respondent entered appearance and contended that she is the owner of the car but the first respondent was not her employee. She never authorised the first respondent to drive the vehicle. She also contended that the accident was not occurred due to the negligence of the first respondent but due to the negligence of the rider of the motor cycle. She denied the nature of injury sustained, the disability suffered, etc. claimed in the petition. She further contended that since the vehicle was insured with the third respondent, compensation, if any, awarded has to be paid by them. She prayed for dismissal of the claim petition. 4. The third respondent entered appearance and filed a written statement contending that the maruthi omni was insured with them. They also denied the allegation of negligence on the part of the first respondent. According to them, the accident occurred due to the negligence of the rider of the scooter and without impleading the owner, rider and insurer of the scooter, the application is not maintainable. They also contended that the claim is exorbitant and the injuries are exaggerated. They also prayed for dismissal of the application. 5. The claim petition was tried jointly along with O.P.(MV) MACA 1233/2016 3 No.190 of 2014 filed by the rider of the motor cycle. No oral evidence was adduced on either side. Exts.A1 to A15 and Exts.X1 and X2 were marked on the side of the claimants. After considering th evidence on record, the tribunal found that the accident occurred due to the negligent driving of the maruthi omni vehicle by the first respondent and awarded a total compensation of Rs.2,05,853/- under various heads as follows: Transport to hospital : Rs. 3,000/Extra nourishment : Rs. 7,000/Damage to clothing : Rs. 2,000/Attendant expenses : Rs. 3,500/Medical expenses : Rs.1,19,193/Pain and suffering : Rs. 30,000/Permanent/partial disability : Rs. 29,160/Future treatment : Rs. 7,000/Loss of expectation of life : Rs. 5,000/---------------Total : Rs.2,05,853/========== The tribunal held that respondents 1 to 3 are jointly and severally liable to pay the compensation and directed the third respondent insurer to deposit the amount together with interest and costs. Dissatisfied with the quantum of compensation awarded by the MACA 1233/2016 4 tribunal, the present appeal has been preferred by the appellant who has now become major. 6. Heard Smt. Manisha K. Das, learned counsel for the appellant and Smt. K.S. Santhi, learned counsel appearing for the third respondent as notice to respondents 1 and 2 dispensed with since the liability to idemnify the insured has not been disputed by the insurance company. 7. Learned counsel appearing for the appellant submitted that several teeth of the appellant have been affected in the accident and that aspect has not been properly considered by the tribunal while fixing compensation under the head loss of amenities in life and also for medical expense. The tribunal had not properly appreciated the disability and the compensation awarded under the head loss of earning power, etc. also is not correct. Further, no compensation has been awarded for loss of income and mental agony suffered by the parents of the appellant as observed by the Apex Court in **Master** ## **Mallikarjun v. Divisional Manager, the National Insurance** **Company Ltd. and another** (AIR 2014 SC 736). No compensation has been awarded under the head future medical expenses, even though he had to undergo another operation after removal of implant. So he is entitled to enhanced compensation on all heads. 8. On the other hand, learned counsel for the insurance company MACA 1233/2016 5 submitted that the total compensation awarded is just and proper while considering the nature of injury sustained and the disability suffered. 9. Since the finding regarding negligence and the liability to indemnify the insured etc. are not in dispute, we are not going into those aspects in this appeal. Admittedly, the injured was only a minor aged only 16 years at the time when the accident occurred. He suffered fracture of middle third of right femur with other injuries. Several of his teeth were also affected. He had undergone treatment as inpatient for 14 days and the fracture was treated with implant fixation. Mobility of teeth was also treated at Matha Dental Clinic. The tribunal has considered all these aspects and Ext.A13 series medical bills were accepted and an amount of Rs.1,19,193/- was awarded under the head medical expenses. So, the contention raised by the learned counsel for the appellant that the injury to teeth and medical expenses incurred for that purpose, etc. has not been properly awarded, appears to be not correct. 10. The tribunal has awarded an amount of Rs.30,000/- under the head pain and suffering, Rs.29,160/- under the head continuing and permanent disability, Rs.5,000/- for loss of expectation of life and Rs.7,000/- under the head future treatment. It is very difficult to fix compensation payable to a minor child as no income can be taken for MACA 1233/2016 6 the purpose of assessing compensation under the head loss of earning capacity, etc. In the decision reported in **Master Mallikarjun's case** (supra), the Apex Court has held that in the case of minor children it is very difficult to assess the compensation under the head loss of earning capacity or loss of amenities in life, etc. Further, the Apex Court has held that 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. The Apex Court has held that in cases where the disability is above 10% and upto 30% to the whole body, an amount of Rs.3,00,000/-, upto 60%, Rs.4,00,000/- and upto 90%, Rs.6,00,000/- has to be awarded under the head compensation for permanent disability and that must take in the pain and suffering already undergone and to be suffered in future, the mental and physical shock, hardship, inconvenience and discomforts, etc. and loss of amenities in life on account of permanent disability. For permanent MACA 1233/2016 7 disability upto 10%, the compensation should be Rs.1,00,000/- unless there are exceptional circumstances to take different yardsticks. 11. In this case the disability certificate shows that the appellant suffered 2% permanent disability. So, applying the principle laid down in the above decision, he will be entitled to get a consolidated amount of Rs.1,00,000/- under the heads mentioned above, instead of awarding an amount of Rs.30,000/- under the head pain and suffering, Rs.29,160/- under the head continuing and permanent disability and Rs.5,000/- towards loss of expectation of life, thereby he will be entitled to get an additional amount of Rs.35,840/- under the above three heads. 12. The tribunal has awarded only Rs.7,000/- for future treatment. But it is seen from the evidence that there is an implant in connection with the treatment for fracture which will have to be removed later for which he may require a substantial amount. So, the amount awarded under the head future treatment expenses appears to be on the lower side and we enhance the same to Rs.20,000/- thereby he will be entitled to get an additional amount of Rs.13,000/- under the head future medical expenses. No amount was awarded under the head loss of income, pain and suffering and mental agony suffered by the parents. In the decision mentioned above, the Apex Court has held that the parents also will have to be given some MACA 1233/2016 8 compensation as they will be attending the children thereby they will be loosing some income. So, an amount of Rs.15,000/- can be awarded under the heads discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation. We are not inclined to enhance any of the amounts awarded under other heads as they appear to be just and proper. So, the appellant is entitled to get an additional compensation of Rs.63,840/- over and above the compensation already awarded which the third respondent insurance company is liable to pay with interest at 9% per annum for Rs.43,840/- from the date of petition till payment as the amount of Rs.20,000/- which represents the future medical expenses has not been incurred and no interest is payable on that amount. The insurance company is directed to deposit the amount within a period of three months from today. With the above modification of the impugned award, the appeal is allowed in part and disposed of. The parties are directed to bear their respective costs in the appeal. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/**