Akhila, minor through father James S/O Thomas v. K.R. Narayanpilla and Managing Director, KSRTC

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 MACA.No. 1037 of 2011() ----------------------OPMV.645/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): PETITIONER ------------------------ AKHILA,D/O.JANES, AGED 14 YEARS,(MINOR), NADUMTHARAYIL HOUSE,KEETTILA KARA,ARAKULAM VILLAGE REPRESENTED BY HER FATHER AND NATURAL GUARDIAN, JAMES,S/O.THOMAS. BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENTS: --------------- 1. K.R.NARAYANPILLAI,S/O.RAMAN PILLAI, KUNNUMPURATHU HOUSE,VADAKKEMURI BHAGOM, THODUPUZHA KARA,THODUPUZHA VILLAGE,THODUPUZHA.P.O, PIN-685584. 2. MANAGING DIRECTOR,K.S.R.T.C, THIRUVANANTHAPURAM-695001. ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC FOR R-2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jj ## **R. BASANT & K. SURENDRA MOHAN, JJ.** **-----------------------------------------------------------M.A.C.A.NO: 1037 OF 2011 & C.M.Appln. 1612 of 2011 ----------------------------------------------------------Dated this the 2[nd ] November, 2011.** ## **JUDGMENT** ## Basant, J. ## **C.M.Appln. 1612 of 2011** This petition is to condone the delay of 975 days in filing the appeal. The appellant is a minor. There is no representation for the respondents. We take a lenient view. Petition allowed. Delay condoned. ## **M.A.C.A.107/2011** Claimant is the appellant, a minor girl aged nine years. She claimed compensation for personal injuries suffered by her as a result of a motor accident which took place on 24-9-2003. She was a minor aged about five years at the time of the accident. She was an inpatient for a total period of 29 days. She had suffered multiple injuries including fracture of left femur and fracture of patella. There was degloving injury on the left leg and knee. There was loss of muscle and tissue from the right thigh whole length. She had allegedly suffered permanent MACA 1037/2011 2 disability as a result of the accident. Her disability was assessed by the medical board at 30% and the same was accepted by the Tribunal. Against a total claim limited to Rs.5 lakhs the Tribunal awarded only an amount of Rs.1,55,000/- as per the details in paragraph 15 of the award which we extract below:- |Compensation for<br>Claimed||Awarded| |---|---|---| |1. Transportation||| |expenses<br>5000|--|6000| |2. Extra nourishment 10000|--|3000| |3. Damage to clothing 500|--|Nil| |4. Bye stander expenses 5000|--|4000| |5. Treatment expenses 80000|--<br>|54483| |6. Loss of amenities<br>50000|--|Nil| |7. Loss of studies<br>25000|--|Nil| |8. Future treatment<br>50000|--|Nil| |9. Loss of earning||| |power<br>25000|--|Nil| |10. For disfiguration 100000|--|Nil| |11. Loss of marriage||| |prospects<br>50000|--|Nil| |12. Pain and suffering 50000|--<br>|20000| |13. Disability<br>160000|--|67500| |(Rs.15000x15x30)||| |------------------------------------------||| |Total:-<br>550500|--|154983| |=================||| MACA 1037/2011 3 Rounded to Rs.155000/- 2. We have heard the learned counsel for the appellant. Respondents though served have not chosen to enter appearance. Challenge is raised only against the quantum of compensation awarded by the Tribunal. 3. Called upon to explain and be specific the learned counsel for the appellant first of all points out that no compensation has been awarded under the head of damage to clothing and articles. We agree that an amount of Rs.1000/- can be awarded under that head. 4. Learned counsel for the appellant then points out that the amount of compensation awarded under the head of pain and suffering is grossly inadequate. Only an amount of Rs.20000/has been awarded as compensation. This is too low considering the nature of multiple fracture suffered as also the period of hospitalisation as an inpatient. We agree with the learned counsel for the appellant that an amount of Rs.30,000/- can be awarded under the head of pain and suffering considering the nature of injuries, period of treatment, the nature of procedures and tender age of the victim child. 5. The learned counsel for the appellant then submits that MACA 1037/2011 4 the accident and the injury suffered have interrupted the educational progress of the child. For such retardation and interruption in the educational progress, no compensation has been awarded by the Tribunal, submits the counsel. We find it safe to assume that the injuries and consequent treatment must have interrupted the educational curriculum of the child for a period of at least four months. We are satisfied that an amount of Rs.5000 can be awarded as compensation under that head. 6. The learned counsel for the appellant then points out that the Tribunal had erred in not adequately compensating the appellant for disability (reduction in earning capacity). Only an amount of Rs.67,500/- has been awarded as compensation under that head. The extent of disability has been reckoned at 30% and the multiplier has been taken at 15%. In these circumstances the challenge is only against multiplicand. Only an amount of Rs.15000 has been accepted as the probable annual income of the child. Learned counsel for the appellant argues that the incident had taken place on 24-9-2003. As early as in 1994 as per clause 6 of the second schedule Rs.1250 has been held to be the amount that can be presumed as the monthly income of a non-earning person. Elapse of a period of MACA 1037/2011 5 about a decade from 1994 has not been taken into consideration by the Tribunal, laments the learned counsel. We are in agreement with the learned counsel. We are satisfied that in the facts and circumstances of this case Rs.2500 can safely be reckoned as the probable future income of the child for the purpose of ascertaining the compensation payable under the head of loss of earning capacity. 7. The learned counsel for the appellant points out that the Tribunal has not awarded any amount of compensation towards loss of amenities in addition to the amount of compensation already awarded by the Tribunal. Physical disability has been proved to have been suffered. The appellant is a girl child. The photograph produced as Ext.A7 reveals the extent of disfiguration of both legs. Counsel argues that this is likely to lead to depletion of marriage prospects. We are satisfied that an appropriate amount of compensation deserves to be awarded taking into account all dimensions of the loss of amenities including disfiguration and depletion in marriage prospects. 8. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.1,23,500/-. MACA 1037/2011 6 i) Damage to clothing - Rs.1000 (no amount awarded by the Tribunal) ii) Loss of studies/interruption in educational progress - Rs.5000 (no amount awarded by the Tribunal) iii) Pain and suffering - Rs10000 (30000-20000) iv) Reduction in earning capacity - Rs67500 (135000 minus67500) (2500x12x15x30/100) v) Loss of amenities including disfiguration, marriage prospects etc - Rs40000 -------------------Total: 123500 ========= 9. The learned counsel for the appellant submits that no costs have been awarded by the Tribunal. Counsel argues and we agree that costs in the proceedings before the Tribunal is liable to be awarded on the entire amount of compensation hereby awarded as calculated in **Jeena v. Satheesh Babu** (2011 (3) KLT 943). 10. In the result; a) This appeal is allowed in part. MACA 1037/2011 7 b) The appellant is found entitled to a further amount of Rs.123500/- (Rupees one lakh twenty three thousand and five hundred only) as compensation in addition to the amount awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period specified by the Tribunal in the impugned award. d) We further direct that proportionate cost be paid to the appellant in the proceedings before the Tribunal on the entire amount of compensation as calculated in **Jeena v. Satheesh Babu** (2011(3) KLT 943). e) All other directions of the Tribunal are upheld. Sd/- R. BASANT Judge Sd/K. SURENDRA MOHAN Judge jj P.S.to Judge MACA 1037/2011 8