ALOSHITHA C. JOY (MINOR) through guardian JOY v. T.P. JACOB; MATHAI; THE NEW INDIA ASSURANCE CO. LTD.; SRI N.S. MOHAMMED USMAN, SC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** ## **MACA.No.2405 OF 2009** **AGAINST THE AWARD IN OPMV 604/2005 DATED 17-03-2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT:** **ALOSHITHA C.JOY (MINOR), D/O. JOY, REPRESENTED BY HER GUARDIAN-FATHER JOY, CHIRAYATH HOUSE, MOTHIRAKANNI DESOM AND P.O., PARIYARAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS:** **1 T.P.JACOB, THEPPALA HOUSE, VENGOLA P.O., (VIA) PERUMBAVOOR - 683 556. 2 MATHAI, S/O.CHERAPPATT PAILEE, MOTHIRAPILLIKARA, TIRUVANIYOOR VILLAGE. 3 THE NEW INDIA ASSURANCE CO.LTD. ST.JOSEPH'S BUILDINGS, A.M.ROAD, PERUMBAVOOR. SRI.N.S.MOHAMMED USMAN, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2405 OF 2009 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.604 of 2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 24.01.2005, at the age of 2 years, while she was travelling on a motorcycle bearing registration No.KL-8/H-2508, as pillion rider, along with her parents. At the place of accident, the motorcycle was hit by a tanker lorry bearing registration No.KL-7/Y-8060 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries, which led to amputation of her right leg below knee. Alleging that the accident occurred due to the rash and negligent driving of tanker lorry by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.8,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver remained absent and they were set 3 MACA No.2405 OF 2009 ex-parte. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the accident; however, denying negligence alleged against the 2[nd] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 4. 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 tanker lorry 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 Tribunal awarded a total compensation of Rs.5,22,000/-, together with interest at the rate of 7% per annum from the date of petition till date of deposit, with proportionate cost and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this 4 MACA No.2405 OF 2009 Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent driver was dispensed with, by the order of this Court dated 10.10.2019. 7. 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. 8. 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 it 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. 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 5 MACA No.2405 OF 2009 compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. ## 9. 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 conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||The compensation claimed<br>under various heads|Amount allowed|Basis/vital details<br>in a nutshell| |---|---|---|---| |1|Pain and suffering|25,000/-|| |2|Loss of amenities|40,000/-|| 6 MACA No.2405 OF 2009 |3|Loss of prospects in life<br>including marriage prospects<br>and prospects in career|50,000/-|| |---|---|---|---| |4|Future expenses|1,50,000/-|| |5|Medical expenses|98,800/-|| |6|Transportation to hospital|2,000/-|| |7|Bystander expenses|2,100/-|| |8|Loss of income of father|2,100/-|| |9|Permanent disability|1,35,200/-|(1500x12x15x50/<br>100)| |10|Other expenses|17,000/-|| ||Total|5,22,000/-|| 11. The accident occurred on 24.01.2005. At the time of accident, the appellant was a minor aged 2 years. The document marked as Ext.A3 is the wound certificate. Ext.A4 is the discharge card and Ext.A5 is the treatment certificate. As evident from Ext.A3 wound certificate, the appellant was first admitted in St.James Hospital, Chalakudy with traumatic amputation of the right leg below knee with tibial shaft exposed and fibula separated. After initial treatment, the appellant was referred to the Specialist Hospital, Ernakulam. Ext.A4 discharge card issued from the Specialist Hospital would show that the appellant was admitted there with degloving avulsion, amputation of the right leg below knee. As per Ext.A5 treatment certificate, she had undergone in-patient treatment 7 MACA No.2405 OF 2009 for a period of 21 days. 12. In Ext.A7 disability certificate, the permanent disability of the appellant on account of the injuries sustained in the accident is assessed as 50%. The Tribunal accepted the percentage of the disability as assessed in Ext.A7, taking note of the Schedule to the Workmen's Compensation Act. 13. Ext.A6 is the medical certificate issued by a doctor to the effect that the appellant needs life long prosthesis below the knee with periodic change of prosthesis and that, the approximate cost for lifelong prosthesis is Rs.2 lakhs. Ext.A10 are the vouchers for the purchase of prosthesis in the year 2005, 2007 and 2009, the total cost of which is Rs.17,000/-. Ext.A11 series of bills and vouchers are for a sum of Rs.98,800/- towards medical expenses. 14. 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 8 MACA No.2405 OF 2009 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 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 monthly notional 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 9 MACA No.2405 OF 2009 under the head loss of earning is too meagre 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 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 10 MACA No.2405 OF 2009 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 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]** . 15. 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** 11 MACA No.2405 OF 2009 **Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. 16. The learned counsel for the appellant would place reliance on the judgement of a Division Bench of this Court in **ICICI Limbard General Insurance Co. Ltd. v. Amith Varghese (Minor) [2017 (2) KHC 199]** in which the appellant therein, who was a minor aged 3 years, met with a road accident on 02.02.2008, who was knocked down by a lorry. In the accident he sustained severe injuries. He had undergone in-patient treatment for a period of 40 days. Ultimately, his right leg was amputated below the knee. The Tribunal awarded a compensation of Rs.7,02,000, which was sought to be enhanced by filing MACA No.320 of 2015. In the said decision, the Division Bench of this Court took the annual income as Rs.24,000/- and added 50% towards future prospects. In the instant case, the minor, who was aged 3 years, sustained serious injuries, resulting amputation of right leg below knee. 17. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC** 12 MACA No.2405 OF 2009 **396]** , the Apex Court laid down the principles regarding payment of compensation for injuries sustained by children, resulting permanent disability. In the said decision, the Apex Court held that in the case of children suffering disability on account of motor accident, the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3,00,000/-; up to 60%, Rs.4,00,000/-; up to 90%, Rs.5,00,000/- and above 90%, it should be Rs.6,00,000/-. For permanent disability up to 10%, it should be Rs.1,00,000/-, unless there are exceptional circumstances to take a different yardstick. 18. Considering the facts and circumstances of the case on hand, in the light of the law laid down in the decisions referred to supra, the notional monthly income of the appellant, after adding 40% towards future prospects, in view of the law laid down by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC** **680]** , can be taken as Rs.4,480/- (3,200 + 1,280), for the purpose of awarding disability compensation, in order to ensure that the appellant with 50% permanent disability is 13 MACA No.2405 OF 2009 granted a sum of Rs.4,00,000/- towards compensation under the head permanent disability. Therefore, the notional monthly income of the appellant for the purpose of awarding compensation under the head permanent disability is taken as Rs.4,480/-, after adding 40% towards future prospects. Applying the multiplier of 15 applicable to the age group of the appellant and the percentage of the permanent disability as 50%, the compensation under this head is re-fixed as Rs.4,03,200/- (4,480 x 12 x 15 x 50/100), resulting an additional compensation of **Rs.2,68,000/-** (4,03,200 - 1,35,200). 19. Towards medical expenses, the Tribunal awarded a sum of Rs.98,800/-, covered by Ext.A11 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 21 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained 14 MACA No.2405 OF 2009 and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is refixed as Rs.4,000/-, resulting an additional compensation of **Rs. 2,000/-** (4,000 - 2,000). 21. Towards bystander expenses the Tribunal awarded a sum of Rs.2,100/- (100 x 21). Towards extra nourishment, the Tribunal has not awarded any compensation. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 21 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. 3,150/- (150 x 21), resulting an additional compensation of **Rs.1,050/-** (3,150 - 2,100) under this head. The appellant is granted a sum of **Rs.2,100/-** (100 x 21) as compensation under the head extra nourishment. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. As evident from Ext.A3 wound certificate, the appellant was first admitted in St.James Hospital, Chalakudy with traumatic amputation of the right leg below knee with tibial shaft exposed and fibula 15 MACA No.2405 OF 2009 separated. After initial treatment, the appellant was referred to the Specialist Hospital, Ernakulam, where she was admitted with degloving avulsion, amputation of the right leg below the knee. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, and taking note of the law laid down by the Division Bench of this Court in **ICICI Lombard General Insurance's case (supra)** , the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.1,00,000/-, resulting an additional compensation of **Rs.75,000/-** (1,00,000 - 25,000). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.40,000/-. In Ext.A7 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 50%. 24. 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 16 MACA No.2405 OF 2009 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. 25. In the instant case, at the time of accident, the appellant was a minor aged 2 years. On account of the injuries sustained in the accident, her right leg is amputated below knee and as a result of which she is having a permanent disability of 50%, as assessed in Ext.A7 disability certificate. 26. Under the head loss of amenities, the Tribunal awarded a sum of Rs.40,000/- and a further sum of Rs.50,000/- was awarded towards loss of prospects in life, including marriage prospects and prospects in career. Considering the fact that the marriage prospects and career prospects of the appellant have been considerably reduced on account of the amputation of her right leg below knee, this Court deem it appropriate to re-fix the compensation under the head loss of amenities and loss of marriage prospects and 17 MACA No.2405 OF 2009 prospects in career as Rs.1,50,000/-, resulting an additional compensation of **Rs.60,000/-** [1,50,000 - (40,000 + 50,000)]. 27. Towards future medical expenses, the Tribunal awarded a sum of Rs.1,50,000/-, considering the fact that the appellant has to purchase artificial prosthesis periodically in regular intervals. In **ICICI Lombard General Insurance's case (supra)** , the Division Bench awarded Rs.2,50,000/towards future medical treatment to a minor aged 3 years, who sustained injuries in a motor accident, which occurred on 02.02.2008, resulting amputation of right leg below knee. Considering the age of the appellant and also the necessity to purchase artificial prosthesis in regular intervals, this Court deem it appropriate to re-fix the compensation under this head as Rs.2,50,000/-, resulting an additional compensation of **Rs.1,00,000/-** (2,50,000 - 1,50,000). The additional compensation granted in this head will not carry interest. 28. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.5,08,150/-** (Rupees Five Lakhs Eight Thousand One Hundred and Fifty only) [2,68,800 + 2,000 + 1,050 + 2,100 + 75,000 + 60,000 18 MACA No.2405 OF 2009 + 1,00,000], in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding Rs.1,00,000/- granted under the head future medical expenses. 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 appellant/claimant towards Balance Court Fee. The disbursement of additional compensation 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. Since the appellant/ claimant is around 17 years, who is yet to attain majority, the Tribunal shall permit disbursement of a sum of Rs.2,50,000/to the appellant, through her father and natural guardian and the balance amount shall be kept in fixed deposit in any Nationalised Bank, till she attains majority. For the said purpose, 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) shall be furnished 19 MACA No.2405 OF 2009 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** **yd**