Akash (Minor) v. Commissioner of Police, Kozhikode City; The Kerala State Insurance Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **MACA.No.934 OF 2011 (C)** **AGAINST THE AWARD IN OPMV No.1545/2007 DATED 30-04-2010 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER IN OP(MV):** **AKASH(MINOR), AGED 17 YEARS, REPRESENTED BY FATHER AND LEGAL GUARDIAN MAHESH KUMAR, S/O. HARIDASAN, RESIDING AT KOTHOOR HOUSE, WEST HILL POST, KOZHIKODE.** **BY ADVS. SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **1 THE COMMISSIONER OF POLICE, KOZHIKODE CITY, PIN-673 001.** *** 2 C. SADANANDAN S/O. RAMACHAN, CHEMBAKASSERY HOUSE, NALLALM POST, KOZHIKODE-673 121. [DELETED]** **3 THE KERALA STATE INSURANCE DEPARTMENT DISTRICT INSURANCE OFFICE, WOOD WORK SHOP, BUILDINGS, PUTHIYARA, KOZHIKODE-673 002.** *** R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 25.03.19 IN IA NO.1/19 IN MACA NO.934/11.** **BY ADVS.** **R1 & R3 BY SMT DEEPA NARAYANAN-SENIOR GOVERNMENT PLEADER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.934 OF 2011(C) 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1545 of 2007 on the file of the Principal 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 05.01.2007, while he was standing in front of West Hill Polytechnic, on the side of a public road. At the place of accident, he was knocked down by an autorickshaw towed by a police recovery van bearing registration No.KL-11/D-3335 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent Kerala State Insurance Department. In the accident, the appellant, who was then a minor aged 12 years, sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of recovery van by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.20,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 3 filed written statements. The 1[st] respondent filed written statement MACA.No.934 OF 2011(C) 3 admitting the accident; however, denying negligence alleged against the 2[nd] respondent driver of the recovery van. It was pointed out that the said vehicle was having valid insurance coverage with the 3[rd] respondent insurer. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the offending vehicle; however, denying the negligence alleged against the 2[nd] respondent driver. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. No oral and documentary evidence was adduced on the side of the respondents. The disability certificate issued by the Medical Board at the Medical College Hospital, Kozhikode was marked as Ext.C1 and the Medic Legal case file was marked as Ext.X1. 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 offending vehicle by the 2[nd] respondent 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 MACA.No.934 OF 2011(C) 4 Tribunal awarded a total compensation of Rs.3,97,400/-, together with interest at the rate of 7% per annum from 06.08.2007 till date of deposit, with a cost of Rs.1,750/- and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Senior Government Pleader for respondents 1 and 3. 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 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. MACA.No.934 OF 2011(C) 5 But at the same time it has 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. 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 concept 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; ||Head<br>of<br>amount<br>claimed|Amount<br>claimed|Amount<br>allowed|Details| |---|---|---|---|---| MACA.No.934 OF 2011(C) 6 |1|Transport to hospital|4,000/-|1.500/-|| |---|---|---|---|---| |2|Extra nourishment|3,000/-|2,000/-|| |3|Medical expenses|2,00,000/-|10,000/-|No bills| |4|Bystander's expenses|1,00,000/-|5,900/-|100 x 59 days| |5|Pain and sufferings|1,50,000/-|30,000/-|| |6|Future treatment and<br>special care|Nil|50,000/-|| |7|Loss of future carrier|1,00,000/-|1,00,000/-|| |8|Permanent disability|10,00,000/-|1,98,000/-|| ||**Total**||3,97,400/-|| 12. The accident occurred on 05.01.2007. At the time of accident, the appellant was aged 12 years. He was studying at Malabar Christian College High School, Kozhikode. The document marked as Ext.A2 is the wound certificate; and Exts.A3 to A5 are discharge summaries. As evident from Ext.A2 wound certificate, on account of the injuries sustained in the accident, both legs of the appellant below knee were amputated. He sustained crush injuries on both lower limbs. He had undergone treatment at various hospitals. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at the Medical College Hospital, Kozhikode, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 88%. The Tribunal accepted the percentage of disability assessed in Ext.C1 for the purpose of awarding compensation under MACA.No.934 OF 2011(C) 7 various heads. Since the appellant was a student at the time of the accident and a non-earning member, the Tribunal fixed the annual income notionally as Rs.15,000/- and applied the multiplier of 15. 13. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk MACA.No.934 OF 2011(C) 8 without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a notional monthly income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC** MACA.No.934 OF 2011(C) 9 **343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and MACA.No.934 OF 2011(C) 10 reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 14. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. 15. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in **Sarla Verma [(2009) 6 SCC 121]** and it has been approved in **Reshma Kumari v.** MACA.No.934 OF 2011(C) 11 **Madan Mohan [(2013) 9 SCC 65]** . The age and income, as stated earlier, have to be established by adducing evidence. The Tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. In **Pranay Sethi** the Apex Court approved the principle of 'standardisation' so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age. 16. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a ThreeJudge Bench of the Apex Court held that, in case of MACA.No.934 OF 2011(C) 12 self-employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** another ThreeJudge Bench followed the principle stated in **Rajesh** . In **Pranay Sethi** , after expressing the opinion that the dicta laid down in **Reshma Kumari** being earlier in point of time would be a binding precedent and not the decision in **Rajesh** , the Constitution Bench observed that, in **Munna Lal Jain** , the Three-Judge Bench should have been guided by the principle stated in **Reshma Kumari** which has concurred with the view expressed in **Sarla Devi** or in case of disagreement, it should have been well advised to refer the case to a Larger Bench. 17. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the deceased towards future prospects, where the deceased had a **permanent job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased MACA.No.934 OF 2011(C) 13 was between the age of **50 to 60 years** , the addition should be **15%** . Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was **self-employed** or on a **fixed salary** , an addition of **40%** of the established income should be the warrant where the deceased was **below the age of 40 years** . An addition of **25%** where the deceased was **between the age of 40 to 50 years** and **10%** where the deceased was between the age of **50 to 60 years** should be regarded as the necessary method of computation. The established income means the income minus the tax component. 18. In the instant case, the appellant was a minor aged 12 years, who was studying in Malabar Christian College High School, Kozhikode. There is absolutely no materials to show the academic brilliance of the appellant. If the appellant had normally continued his studies he would have secured a job. In the accident, the appellant sustained crush injuries on both lower limbs. His both lower limbs below knee were amputated. Considering the facts and circumstances of the case, and taking note of the fixation of notional monthly income by the Apex Court in **Mekala's case (supra)** , the notional monthly MACA.No.934 OF 2011(C) 14 income of the appellant, for the purpose of assessing disability compensation can be taken as Rs.7,000/-. Adding 40% towards future prospects, the multiplicand is taken as Rs.9,800/- (7,000 + 2,800). 19. The Tribunal awarded Rs.1,98,000/- (15,000 x 15 x 88/100) towards compensation for permanent disability. Since the notional monthly income of the appellant, after adding 40% towards future prospects, is taken as Rs.9,800/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of the permanent disability as 88%, the compensation under the head permanent disability is re-fixed as Rs.15,52,320/- (9,800 x 12 x 15 x 88/100), resulting an additional compensation of **Rs.13,54,320/-** (15,52,320 - 1,98,000). 20. The accident is of the year 2007. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 59 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. 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 this MACA.No.934 OF 2011(C) 15 head is refixed as Rs.4,000/-, resulting an additional compensation of **Rs.2,500/-** (4,000 - 1,500). 21. Towards bystander expenses the Tribunal awarded a sum of Rs.5,900/- (100 x 59). Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2007 and the appellant had undergone inpatient treatment for 59 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.11,800/- (200 x 59), resulting an additional compensation of **Rs.5,900/-** (11,800 - 5,900). The compensation under the head extra nourishment is re-fixed as Rs. 8,850/- (150 x 59), resulting an additional compensation of **Rs. 6,850/-** (8,850 - 2,000). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.10,000/-. In the absence of any medical bills the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. In **ICICI Limbard** MACA.No.934 OF 2011(C) 16 ## **General Insurance Co. Ltd. v. Amith Varghese (Minor)** **[2017 (2) KHC 199]** , a Division Bench of this Court granted Rs.1,00,000/- as compensation towards pain and suffering to a minor aged 3 years, who met with a motor accident on 02.02.2008, resulting amputation of his right leg below knee. In the instant case, on account of the injuries sustained in the accident, both legs of the appellant below knee were amputated. 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 re-fixed as Rs.1,50,000/resulting an additional compensation of **Rs.1,20,000/-** (1,50,000 - 30,000). 24. Towards future treatment and special care the Tribunal awarded a sum of Rs.50,000/-. During the course of arguments the learned counsel for the appellant would submit that the appellant is provided with artificial limbs with the financial support of the State Government. Therefore, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. MACA.No.934 OF 2011(C) 17 25. Towards loss of future career the Tribunal awarded a sum of Rs.1,00,000/-. The injuries sustained in the accident had resulted in amputation of both legs of the appellant below knee. 26. The Apex Court in **Govind Yadav v. New India Insurance Company Ltd. [(2011) 10 SCC 683]** granted a sum of Rs.1,50,000/- under the head loss of amenities and enjoyment of life. In the said decision, the Apex Court was dealing with the case of an unmarried person aged 24 years, who was working as helper. On account of the injuries sustained in the motor accident, his left leg was amputated above knee. The loss of earning on account of the permanent disability was taken as 70%. Considering his age and also the fact that his marriage prospects have considerably reduced on account of amputation of left lower limb above knee, the Apex Court granted a sum of Rs.1,50,000/- under the head loss of amenities and enjoyment of life. 27. In the instant case, on account of the injuries sustained in the accident, both legs of the appellant below knee were amputated. He sustained injuries at an age of 12 years. As evident from Ext.C1 disability certificate issued by the MACA.No.934 OF 2011(C) 18 Medical Board, he suffers 88% permanent whole body disability. Considering the fact that marriage prospects and career prospects of the appellant have been considerably reduced on account of amputation of his both legs below knee, and taking note of loss of amenities and enjoyment of life, the applicant is granted a sum of Rs.2,00,000/- under the head loss of amenities and enjoyment of life, marriage prospects and career prospects. Deducting Rs.1,00,000/- awarded by the Tribunal under the head loss of future career, the appellant will be entitled for an additional compensation of **Rs.1,00,000/-** (2,00,000 - 1,00,000) under the above heads. 28. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.16,39,570/-** (Rupees sixteen lakhs thirty nine thousand five hundred and seventy only) [13,54,320 + 2,500 + 5,900 + 6,850 +1,20,000 + 1,00,000] 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 MACA.No.934 OF 2011(C) 19 appellant/claimant towards Balance Court Fee and Legal Benefit Fund. 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 to 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 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** Skk//161219