Akash Rajeev (Minor) v United India Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 ``` ## `MACA NO. 96 OF 2023` ``` [FILED UNDER SECTION 173 OF THE MOTOR VEHICLES ACT AGAINST THE AWARD DATED 05.02.2021 IN OP(MV)NO.121/2016 BY THE FIRST ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM] ``` ## `APPELLANT/APPLICANT:` ``` AKASH RAJEEV (MINOR), AGED 12, REPRESENTED BY HIS MOTHER SHEEJA, D/O SHEELA THAMPI, CHANDRA NIVAS, MENAMKULAM, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM, PIN – 695582. ``` ``` BY ADVS.R.T.PRADEEP M.BINDUDAS K.C.HARISH ``` ## `RESPONDENT/3RD RESPONDENT:` ``` UNITED INDIA INSURANCE CO. LTD., REPRESENTED BY THE DIVISIONAL MANAGER, MALANKARA BUILDING, VJT HALL ROAD, PALAYAM, THIRUVANANTHAPURAM, PIN – 695034. ``` ``` BY ADV S.K.AJAY KUMAR, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 96 OF 2023 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellant was a mere six years in age, when he was injured in a road accident, while riding pillion on a motorcycle, along with his father. The offending vehicle, a tripper lorry, driven in a rash and negligent manner collided with the motor cycle; consequent to which, the appellant fell on the road and suffered very grievous injuries. The appellant thereupon filed OP(MV)No.121/2016 on the files of the Motor Accidents Claims Tribunal (‘Tribunal’, for short), Thiruvananthapuram, seeking a total compensation of Rs.17,60,000/-, but which has been allowed only to the extent of Rs.6,12,800/-. He has thus filed this Appeal being unsatisfied with the compensation and praying that it be enhanced. 2.Sri.R.T.Pradeep – learned counsel for the appellant, pointed out that the learned ``` ``` MACA NO. 96 OF 2023 ``` ``` -3- ``` ``` Tribunal ought to have granted much higher compensation towards disability suffered by his client, because Ext.A8 – Certificate itself shows that he has 20% permanent disability. He argued that the learned Tribunal should have understood that this is only a whole body disability; and that the functional disability for his client would be in excess of 60%, thus entitling him an escalation of his monthly income by way of future prospects also. He concluded his submissions, saying that the Tribunal also ought to have granted some compensation towards“LossofMarriage ``` ``` Prospects” to his client. ``` ``` 3.In response, Sri.S.K.Ajay Kumar – ``` ``` learned Standing Counsel for the United India Insurance Company Limited (‘Insurance Company’, for short), argued that the computations adopted by the Tribunal are not only fair and just, but, ``` ``` MACA NO. 96 OF 2023 ``` ``` -4- ``` ``` in fact, is excess of what were eligible to him, going by the judgment of the Hon’ble Supreme Court inMaster Mallikarjun v. Divisional Manager, the National Insurance Company Limited and Another [(2014) 14 SCC 396]. He thus prayed that this Appeal be dismissed. ``` ``` 4.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 5.I notice that the Tribunal has, in fact, adopted a notional monthly income for the child to be Rs.92,000/- per annum, going by the declarations of this Court in National Insurance Company Ltd. V. Assainar [2019 (4) KLT 39]. This is certainly adequate and fair because, when the Hon’ble Supreme Court delivered another judgment ``` ``` MACA NO. 96 OF 2023 ``` ``` -5- ``` ## `in Kurvan Ansari Alias Kurvan Ali v. Shyam Kishore` ``` Murmu [(2022) 1 SCC 317], relating to the injury of a child more than fifteen years old, the notional income adopted was only Rs.30,000/-. I ``` ``` do not, therefore, intend to modify the findings of the learned Tribunal in this regard. ``` ``` 6.Coming to the question of future ``` ``` prospects, again I find that the Tribunal has not erred because when it adopted a higher figure of Rs.92,000/- towards notional income, ``` ``` it would take into its fold future prospects ``` ``` also. ``` ``` 7.That said, however, I cannot find favour ``` ``` with the Tribunal to the extent to which it has granted a mere Rs.30,000/- and Rs.90,000/- ``` ``` respectively towards compensation for “Pain and ``` ``` Suffering” and “Loss of Amenities”. ``` ``` 8.I say as afore, because when one ``` ``` examines the medical evidence on record, ``` ``` MACA NO. 96 OF 2023 ``` ``` -6- ``` ``` particularly Ext.A5 – Treatment Certificate, Ext.A6 – Outpatient Records, Ext.A7 series – Medical Bills, Ext.A8 – Disability Certificate, along with Ext.A9 – Wound Certificate, it is ``` ``` indubitable – as also uncontroverted - that the child suffered very grievous injuries, including ``` ``` “type III A open fracture both femoral condyles Right (Hoffa’s fracture), closed fracture shaft of right femur, type III A open fracture right patella and soft tissue injury right knee.” ``` ``` (sic). The treatment records would further show ``` ``` that the child was treated by “wound debridement ``` ``` and elastic nailing of right femur, open ``` ``` reduction and internal fixation of femoral ``` ``` condylar with K wires and screws and repair of patellar fragments with ethibond.” (sic) ``` ``` 9.Pertinently, the implants on the body of the appellant was removed partially on 27.10.2015, which is one year and one month ``` ## `MACA NO. 96 OF 2023` ``` -7- ``` ``` after the accident; while, rest of it was removed only on 05.04.2016, which is more than 18 months after the accident. It does not, therefore, require further expatiation to imagine the “Pain and Suffering” which the child must have undergone, particularly because he was too young to respond as an older person could have. The child must have been subjected to gross trauma and stress on account of the prolonged treatment which he had to undergo and in carrying the implants within his body for nearly two years; and hence the compensation for “Pain and Suffering” and for “Loss of Amenities” ought to have been much higher, than what has been granted by the learned Tribunal. ``` ``` 10.Added to this, Ext.A8 - Disability Certificate shows that the doctor, who examined the appellant, found that his problems to be very severe and certified the permanent ``` ``` MACA NO. 96 OF 2023 ``` ``` -8- ``` ``` disability to be 20%. Even though I do not find error in the learned Tribunal in having accepted this percentile as the one to be reckoned for the purpose of compensation for permanent ``` ``` disability, and though I am not in favour of the submissions of the appellant that same ought to have been revised to 60%, noting it to be functional disability – there being no evidence to such effect – the compensation for “Pain and Suffering” and “Loss of Amenities” certainly ought to have been much higher. ``` ``` 11.I notice that the appellant had claimed Rs.3,00,000/- and Rs.5,00,000/- respectively under the heads “Pain and Suffering” and “Loss ``` ``` of Amenities”, but that only Rs.30,000/- and ``` ``` Rs.90,000/- have been awarded. I, therefore, propose compensation for “Pain and Suffering” to be Rs.2,00,000/-; and the compensation for “Loss of Amenities” be enhanced to Rs.1,50,000/-. I do ``` ``` MACA NO. 96 OF 2023 ``` ``` -9- ``` ``` not intend to disturb the findings of the learned Tribunal under any other heads. ``` ``` 12.Before I close, however, I must answer ``` ``` the contention of Sri.R.T.Pradeep that the ``` ``` appellant ought to have been compensated for reduction of “Marriage Prospects”. I am afraid ``` ``` that, with 20% disability, this will be too early for this Court to conclude so and ``` ``` therefore, rightly, the Tribunal has not allowed ``` ``` it. I see no reason to intervene with such a ``` ``` conclusion, particularly when no evidence has ``` ``` been led by the appellant in substantiation of the same. ``` ``` In the afore circumstances, I allow this ``` ``` appeal in part, enhancing the compensation under the head “Pain and Suffering” to Rs.2,00,000/- (Rupees two lakhs only); and that under the head “Loss of Amenities” to Rs.1,50,000/- (Rupees one lakh fifty thousand only). ``` ``` MACA NO. 96 OF 2023 ``` ``` -10- ``` ``` In all other heads, the compensation awarded ``` ``` by the Tribunal will remain intact. ``` ``` Needless to say, theappellant will be at ``` ``` full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8%, ``` ``` as awarded by the Tribunal, from the date of ``` ``` claim until it is recovered.He will also be ``` ``` entitled to proportionate costs on the enhanced ``` ``` amount as ordered by the Tribunal. ``` ``` At this time, Sri.R.T.Pradeep interjected to ``` ``` say that some amount ought to have been granted ``` ``` to the appellant for future treatment. This ``` ``` certainly is something which is eligible to the ``` ``` appellant, provided he is able to establish the ``` ``` actual costs of treatment through cogent and reliable means. ``` ``` Per contra, Sri.S.K.Ajay Kumar submitted ``` ``` that, at the time when the impugned Award was ``` ``` MACA NO. 96 OF 2023 ``` ``` -11- ``` ``` issued, the implants had been removed and therefore, there was no future medical requirements for the appellant. Though, there may be some force in this, I certainly leave it open to the appellant to approach the Tribunal in future, should he face any further expenses for future treatment. The contentions in this regard are left open, so that he can impel it by way of an appropriate proceeding, including review, if so required in future. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```