Amal (Minor) S/O Satheesan v. Shinde Balashed, Suresh Akkaram Chavan, The Oriental Insurance Company Limited

1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 26 TH DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 ``` ``` MACA NO. 2382 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 13/12/2012 IN OPMV NO.3497 OF 2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ## **`AMAL (MINOR)`** ``` S/O.SATHEESAN, RESIDING AT KUZHIPARAMBIL HOUSE, KOZHIKUNNU, MULAMKUNNATHUKAVU, THRISSUR DISTRICT. (MINOR APPELLANT REPRESENTED HEREIN BY HIS GUARDIAN FATHER SATHEESAN, S/O.MYTHRAN, AGED 43 YEARS, RESIDING AT KUZHIPARAMBIL HOUSE, KOZHIKUNNU, MULAMKUNNATHUKAVU, THRISSUR DISTRICT) ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1 SHINDE BALASHED A/POND, PROPRIETOR, ZENGAN TRANSPORT COMPANY, KARAD, KARAD TALUK, SAHARA DISTRICT, MAHARASHTRA, ``` MACA 2382 of 2013 2 ``` PIN 228 411. ``` - **`2 SURESH AKKARAM CHAVAN`** - **`S/O.AKKARAM, RESIDING AT D.192/D, MANGALAVARPET, KARAD TALUK, SAHARA DISTRICT, MAHARASHTRA PIN 228 411.`** ``` 3 THE ORENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE, BHATTED COMPLEX, DATTA CHOWK, KARAD TALUK, SATHARA DISTRICT, MAHARASHTRA PIN 228 411. ``` ## **`BY ADV SRI.TITUS MANI`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2382 of 2013 3 ## **J U D G M E N T** ``` The appellant herein is the petitioner in OP(MV)No.3497 of 2005 on the file of Motor Accidents Claims Tribunal, Thrissur, filed this appeal challenging the quantum of compensation awarded by the Tribunal. ``` ``` 2. The appellant/petitioner met with a road ``` ``` traffic accident on 6/10/2005 while he was ``` ``` travelling in an autorickshaw through Shoranur-Thrissur public road. When that ``` ``` autorickshaw reached Kolazhy, MH-11/M-3439 lorry ``` ``` driven by the 2nd respondent in a rash and negligent manner dashed against the autorickshaw, ``` ``` and the appellant sustained serious injuries. The ``` MACA 2382 of 2013 4 ``` appellant was treated at Aswini Hospital as an inpatient for 7 days. He suffered serious head injury involving a depressed fracture of the frontal bone causing disability of 7%. The injuries suffered by him affected his studies also. Though he approached the Tribunal claiming compensation of Rs.2,50,000/-, the Tribunal awarded only Rs.66,950/-, and hence this appeal. ``` ``` 3. The 1 st respondent is the owner of the offending lorry, and the 2 nd respondent was its ``` ``` driver on the date of accident. The 3rd respondent is the insurer. ``` ``` 4. Notice against the 1st respondent was dispensed with. The 2nd respondent though service ``` ``` was complete, none appeared for him. The 3rd ``` MACA 2382 of 2013 5 ``` respondent/insurance company entered appearance through Adv.Titus Mani. The 3rd respondent is admitting the insurance policy. ``` ``` 5. Now this Court is called upon to find out whether there is any irregularity, illegality and impropriety in the impugned award warranting interference by this Court. ``` `6. Heard learned counsel for the appellant and` `learned counsel for the 3rd respondent/insurer.` `7. As already stated the 3rd respondent/insurer is admitting the insurance policy of the offending vehicle, as on the date of accident. The main ground alleged by the appellant is that, learned tribunal failed to award compensation as stipulated in the decision` _**Master Mallikarjun v. Divisional Manager, The**_ MACA 2382 of 2013 6 _**National Insurance Co. Ltd. and Another [2013 KHC 4670],**_ ``` though the injured was a 5 year old boy, who suffered permanent disability of 7%, as reported by the Doctor in Exhibit A15 disability certificate. ``` `As per` _**Master Mallikarjun’s**_ `case, if the child suffered permanent disability up to 10%, the compensation should have been Rs.1 Lakh, unless there are exceptional circumstances to take a different yardstick, in addition to, the actual expenditure for treatment, attendants etc.` ``` 8. In the case on hand, Exhibit A15 disability certificate shows that, the appellant child suffered disability of 7%. But learned Tribunal in ``` ``` paragraph 12 of the award found that, the Doctor who issued the disability certificate was not ``` MACA 2382 of 2013 7 `examined. The certificate was not issued from any medical board. The disability noted was 7% for the whole body. So learned Tribunal was justified in taking his disability as 3%, and it needs no modification. Going by` _**Master Mallikarjun’s**_ `case cited (supra) a child who suffered permanent disability upto 10% is eligible to get Rs.1 lakh, excluding the actual expenditure for treatment attendant etc..` `9. The appellant was awarded compensation of Rs.8,100/- towards disability, Rs.12,000/- for pain and suffering, Rs.10,000/- for loss for study, and Rs.10,000 for loss of amenities which comes to Rs.40,100/- in total. From Rs.1 lakh to be awarded as per` _**Master Mallikarjun’s**_ `case Rs.40,100/- is liable` MACA 2382 of 2013 ``` to be deducted. So the balance will come to ``` ``` Rs.59,900/-. ``` ``` 10. Regarding the other expenses actually met by the appellant, the medical expenses were given, as per the bills. Bystander expenses were given, transportation expenses as well as loss of earning for the parents also were awarded by the Tribunal. ``` ``` It needs no change. Towards extra nourishment though Rs.2,000 was claimed, nothing was awarded by ``` ``` the tribunal. So this court is inclined to award Rs.2,000/- towards extra nourishment, as the appellant suffered all major injuries on his head and face, and so he may not have been able to take normal food for some period. ``` ``` 11. Towards damage to clothing though ``` MACA 2382 of 2013 9 ``` Rs.1,000/- was claimed, nothing was awarded. So this Court is inclined to award Rs.500/-, towards damages to clothing. ``` ## `12. The enhanced compensation awarded in this` ``` appeal is stated in the table below:- ``` |Head of claim|Amount<br>awarded by the<br>Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |---|---|---|---| |Disability|8,100/-<br>12,000/-<br>10,000/-<br>10,000/-<br>—-----------<br>40,100/-|1,00,000/-|59,900/-| |Pain and<br>suffering|||| |Loss of study|||| |Loss of amenities|||| |Extra<br>nourishment||2,000/-|2,000/-| |Damage to<br>clothing||500/-|500/-| |TOTAL 62,400 /-|||| ||||| MACA 2382 of 2013 10 ``` 13. So the appellant is entitled to get the enhanced compensation of Rs.62,400/- (59,900+2,000+ 500) as enhanced compensation. ``` ``` 14. The 3 rd respondent/insurer is directed to deposit the enhanced compensation in the bank account of the appellant, with interest @ 8% per annum, from the date of petition till the date of deposit (excluding 247 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of appellant towards Tax, balance court fee and legal ``` MACA 2382 of 2013 11 ``` benefit fund. ``` ``` The appeal is allowed to the extent as above, and no order is made as to costs. ``` ``` sd/- ``` ## **SOPHY THOMAS,** **JUDGE** ska