ALIVIN JOSE (MINOR) v. THE ORIENTAL INSURANCE CO. LTD.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` TUESDAY, THE 3[RD] DAY OF JANUARY 2023/13TH POUSHA, 1944 ``` ``` M.A.C.A. NO.384 OF 2012 ``` ``` OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR) ``` ## **`APPELLANT/PETITIONER IN OP(MV)1266/2006:`** ``` ALIVIN JOSE, (MINOR), S/O.JOSE M.J, 6 YEARS(D.O.B. 28/8/1998), MANJALY HOUSE, NEEROLIPARA, KARUKUTTY P.O., ERNAKULAM DIST, REP.BY JOSE M.J., MANJALY HOUSE, NEEROLIPARA, KARUKUTTY P.O., ERNAKULAM DIST. ``` ``` BY ADV SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/RESPONDENT No.3 IN OP(MV)1266/2006:`** ``` THE ORIENTAL INSURANCE CO. LTD. IST FLOOR, K.V.VARKEY MEMORIAL COMPLEX, NEAR KSRTC BUS STATION, ANGAMALY P.O-683 572 ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.384/2012 2 ## JUDGMENT _(Dated: 3[rd] January, 2023)_ This appeal is filed by the petitioner in O.P.(MV)No.1266 of 2006 on the files of the Motor Accidents Claims Tribunal, Perumbavoor (the parties are referred to as they are arrayed in the petition). 2. Brief facts of the case are as follows: On 25.04.2006 at about 04.00 p.m., while the petitioner was standing near the northern side of Angamaly – Mookkannoor road for crossing the Aluva – Munnar private road at Cochin Bank junction from north to south direction, a mini lorry bearing Reg.No.KL-7/AQ-1924 driven by the first respondent came in a rash and negligent manner from the eastern side and hit against the petitioner and thereby the petitioner sustained grievous injuries. The 2[nd] respondent is the owner of the mini lorry and 3[rd] respondent is the insurer. 3. The 1[st] and 2[nd] respondents filed a joint written statement disputing the rashness and negligence on the part of MACA No.384/2012 3 the 1[st] respondent. It was contended that the accident happened due to the carelessness of the petitioner himself. The 3[rd] respondent filed a written statement admitting the insurance policy of the mini lorry in the name of the 2[nd] respondent at the time of the accident. It was contended that the accident happened solely due to negligence on the part of the petitioner who crossed the road without observing the vehicles coming. The compensation sought is excessive and prayed for the dismissal of the petition. 4. The Tribunal relying on Exts.A1 to A9, B1 and X1 disability certificates along with the oral evidence of PW1, awarded a total compensation of Rs.3,35,429/- with interest at the rate of 8% per annum from the date of application till realisation from respondents 1 to 3 jointly and severally. Aggrieved by the compensation awarded under various heads, the appeal is filed. 5. The learned counsel for the appellant submits that the Tribunal has taken the monthly income at Rs.15,000/- since the MACA No.384/2012 4 petitioner is a minor and non-earning member. Calculating the disability compensation relying on X1 disability certificate, which shows that the petitioner has a disability of 40%. Taking the income as Rs.15,000/- and the multiplier as 15 and the disability assessed as 40%, the Tribunal has awarded a sum of Rs.90,000/as compensation. The counsel for the appellant relied on the decision of the Apex Court in _Master Mallikarjun v. Divisional Manager, National Insurance Company Ltd. & Another (2013 (3)_ _KLJ 815)_ . In the said case, the Apex Court has held in para 12 that, though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor accident, having regard to the relevant factors, precedents and approach of various High Courts, it was held that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc., should be, if the disability is up to 10%, it should be Rs.1,00,000/-; disability is above 10% and up to 30% to the whole body, Rs.3,00,000/-; up MACA No.384/2012 5 to 60%, Rs.4,00,000/-; up to 90%, Rs.5,00,000/-; and above 90%, Rs.6,00,000/-. 6. As per the disability certificate issued by the Medical Board, the percentage of disability assessed is 40%. So, by relying on the dictum laid down in Master Mallikarjun’s case (supra), the claimant is entitled to a sum of Rs.4,00,000/-, since the disability is between 30% to 60%. The appellant has produced AnnexuresA1 to A54 documents and this Court has accepted the same as additional documents as per order in I.A.No.1 of 2022. Those are documents relating to the bills as well as the discharge summary. The total amount spent by the petitioner as expenses for treatment as per Annexures-A3 to A54 would come to Rs.84,688/-. Though the senior counsel objects to the marked documents, the same was accepted going by the averments in the affidavit. Hence, I am inclined to allow Rs.84,688/- under the head of treatment expenditure, the actual bills are produced before this court as additional documents. Hence the amount comes to: 84,688+1,59,479 = 2,44,167/-. As per Annexures-A1 MACA No.384/2012 6 and A2, the appellant was given treatment as inpatient for 10 days. For attendant charges, the Tribunal has awarded compensation for 57 days, taking the daily expenses as Rs.100/-, taking the same yardstick for 10 days at the rate of Rs.100/-, the appellant is entitled to another sum of Rs.1,000/- as attendant charges. The counsel for the appellant further argues that as per the dictum laid down in Master Mallikarjun's case (supra), for discomfort, inconvenience, and loss of earnings to the parents during the period of hospitalisation, the Apex Court has awarded a sum of Rs.25,000/- as a lump sum and another sum of Rs.25,000/- under the head of medical and incidental expenses during the period of hospitalisation for 58 days, hence the claimant is entitled to compensation under the above two heads also. It is seen from the award that the Tribunal has awarded compensation for extra nourishment, transport to the hospital, damage to clothing and hence, for the discomfort, inconvenience caused and loss of earnings to the parents during the period of hospitalisation, I am inclined to enhance the sum of Rs.10,000/- under the said head. MACA No.384/2012 7 For medical and incidental expenses for the period of 57 days during hospitalisaiton, the appellants are entitled to another sum of Rs.10,000/-. 7. Learned senior counsel for the respondent insurance company, Sri.George Cherian, (Thiruvalla) argues that though the medical certificate issued by the Medical Board states that 40% disability is assessed while one of the doctors who were in the Medical Board while examined has deposed that the disability is only on the upper limb of the right hand, hence the dictum laid down in Master Mallikarjun's case (supra) cannot be fully accepted to the facts of this case. It is true that while the doctor was examined as PW1 has deposed so, going by the Medical Certificate issued by a team of doctors including PW1, it is stated that physical disability is assessed as 40%, hence the collective decision taken by the Board as 40% disability is accepted. It is to be noted that the Insurance Company has not filed any appeal challenging the order of the Tribunal. In such a situation, it cannot be said, the physical disability assessed at 40% is for the upper MACA No.384/2012 8 limb, hence the appellant is entitled to the consolidated amount of Rs.4,00,000/- as stated by the Apex Court in Master Mallikarjun's case (supra). 8. The counsel for the respondent also submits that, as far as the interest for the expenses incurred after the award is passed and the bills produced as Annexures-A3 to A54, the claimants are entitled to interest only from the date on which the I.A was allowed. The learned counsel for the appellant submits that these expenses were incurred by the appellant during the period from 2015-2016 onwards and hence the appellants are entitled to interest on the said amount also from the date of the bills. It is also seen that additional documents are produced as per I.A.No.1 of 2020 along with an affidavit sworn on 31.01.2022, this court has accepted the additional documents and awarded the entire claim of Rs.84,688/- being the actual medical bills for treatment. The interest is awarded as non-payment of the amounts as of the date of claim. It is seen that the additional documents (bills) were produced before this court and brought to MACA No.384/2012 9 the notice of the insurance company only on 31.01.2022, hence, the amount of Rs.84,688/- will carry interest at the rate of 8% only from the date of filing of the petition as additional documents. Accordingly, the following enhancements are made to the award passed by the Tribunal: |_Sl._<br>_No._|_Head of Claim_|_Amt. Awarded_<br>_by_<br>_Tribunal_<br>_(Rs.)_|_Amt._<br>_enhanced_<br>_in_<br>_appeal (Rs.)_| |---|---|---|---| |_1._|_For loss of pain and_<br>_suffering,_<br>_for loss of permanent_<br>_disability,_<br>_For loss of amenities_<br>_For loss of disfiguration_|<br>_30,000/-_<br>_90,000/-_<br>_30,000/-_<br>_10,000/-_|_4,00,000/-_| |_2._|_For loss of treatment_<br>_expenses_|_1,59,479/-_|_2,44,167/-_| |_3._|_For loss of earnings to_<br>_parents_|_…………_|_10,000/-_| |_4._|_For loss of attendant_<br>_charges_|_5,700/-_|_6,700/-_| |_5._|_For medical & incidental_<br>_expenses_|_…………._|_10,000/-_| ||_Total_|_3,25,179/-_|_6,70,867/-_| ||_Amount enhanced = 6,70,867 – 3,25,179 =_||_3,45,688/-_| ||||| MACA No.384/2012 10 In the result, the appeal is allowed and the claimant is entitled to a sum of Rs.3,45,688/- (Rupees Three lakh Forty-five thousand six hundred and eighty-eight only) as additional compensation with interest at the rate of 8% per annum from the date of petition till realisation, out of which the amount of Rs.84,688/- awarded under the head treatment expenses, which will also carry interest at the rate of 8% from the date of filing of the petition as additional documents before the court, i.e. on 31.01.2022. If any amounts have already been paid, the same shall be granted set off. All other findings entered by the Tribunal stand confirmed. The appellant/petitioner shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made MACA No.384/2012 11 clear that no interest shall run on the enhanced amount after the period stipulated by this Court. _Sd/-_ BASANT BALAJI, JUDGE ss