Anjana (minor) represented by father Shaji v. Indira Krishnan, Ismail, Abdul Salam, and National Insurance Co. Ltd. (MACA No. 2318 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939** ## **MACA.No. 2318 of 2012 -------------------------** **AGAINST THE JUDGMENT IN OP(MV).1677/2005 of MACT, MUVATTUPUZHA, DATED 21-04-2012** ## **APPELLANT/PETITIONER: ----------------------** **ANJANA, D/O.SHAJI, AGED 6 YEARS, KUNNATH HOUSE, MANJALLOOR MANJALLOOR VILLAGE, MUVATTUPUZHA MINOR REPRESENTED BY FATHER SHAJI, S/O. JOHN KUNNATH HOUSE, MANJALLOOR MUVATTUPUZHA AS NEXT FRIEND.** **BY ADVS.SRI.T.K.KOSHY SMT.V.V.RISANI** ## **RESPONDENTS/RESPONDENTS 1 TO 4:** **----------------------------------** **1. INDIRA KRISHNAN, ELANGANAL VEEDU, VANNAPPURAM VILLAGE THODUPUZHA, PIN 685 607.** **2. ISMAIL, S/O.ABDULKHADIR, MUNDACKAL VEEDU, KUMMAMKALLU KARA, KARIKODU, THODUPUZHA PIN 686 610** **3. ABDUL SALAM, S/O.SAITHUMUHAMMED ADAMPILLITHOTTIYHIL HOUSE, KARIKODE, KARIKODE VILLAGE THODUPUZHA, PIN 686 610.** **4. NATIONAL INSURANCE CO. LTD., THODUPUZHA, PIN 685 584.** ## **R4 BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.2318 of 2012 **-----------------------------------------------** Dated this the 17[th] day of July, 2017 ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** ## . This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Muvattupuzha, dated 21.4.2012 in O.P.(MV)No.1677/2005, a claim petition filed by the appellant/ claimant, claiming compensation on account of the injuries sustained in a motor accident which occurred on 10.7.2004. While the appellant/claimant was walking along the side of a public road, she was knocked down by a jeep bearing registration No.KLW-3509, driven by the 3[rd] respondent. The 1[st] respondent is the registered owner of the said jeep and the 2[nd] respondent is the owner in possession. The 4[th] respondent is the insurer of the said vehicle. In the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of jeep by the 3[rd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,81,250/- under different heads. M.A.C.A.No.2318 of 2012 :-2-: 2. Before the Tribunal, Exts.A1 to A13 were marked on the side of the appellant/claimant and the doctor who issued Ext.A13 disability certificate was examined as PW1. On the side of the respondents, a copy of the insurance policy of the offending jeep was marked as Ext.B1. The respondents have not chosen to adduce any oral evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the offending jeep by the 3[rd] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 4[th] respondent insurer was held liable to indemnity the 1[st] and 2[nd] respondents, in the matter of payment of compensation. Under different heads, the Tribunal awarded a total compensation of Rs.3,03,654/- and directed the 4[th] respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of application till deposit with proportionate cost. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court with this appeal. 5. Heard arguments. M.A.C.A.No.2318 of 2012 :-3-: 6. The sole 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 different heads. 7. The accident is of the year 2005 and at the time of accident, the appellant was aged 6 years. The injuries sustained by her as borne out from Ext.A6 wound certificate, read thus ; “Open ankle joint (left) with soft tissue defect on the medial aspect of ankle and foot, closed fracture both bones M/3 and compartment syndrome.” The appellant had undergone inpatient treatment for a period of nearly 58 days, as borne out from the discharge summaries already on record as Exts.A7 and A8, and also another discharge summary issued from the Specialist Hospital, Ernakulam, which was produced before the Tribunal along with an interlocutory application, which has also been referred to in paragraph 8 of the award. 8. In Ext.A13 disability certificate issued by PW1 doctor, a permanent whole body disability of 15% as per McBride scale is assessed with the following disabilities ; “1. There is 1 cm. shortening and limbing on the left side left ankle joint and deformed with ugly and big scarring around the ankle joint. 2. Movements of left ankle joint are reduced almost 75% of M.A.C.A.No.2318 of 2012 :-4-: normal. 3. X-ray left leg with ankle showed fracture tibia united with more than 20 degree angulation. 4. Fibula also malunited. There is osteoporosis of bones around the ankle joint.” The Tribunal accepted the said percentage of disability for the purpose of assessing compensation under different heads. 9. The compensation awarded by the Tribunal under different heads reads thus ; |Head<br>|Amount|Amount| |---|---|---| ||claimed|awarded| |General expenses:Transport|`16,250/-|`7,500/-| |to hospital, damage to clothe,||| |extra nourishment, attendance||| |expenses etc.||| |Medical expenses (excluding<br>|`1,80,000/-|`2,07,404/-| |bill Nos.23,33,43,47,56,48,49)||| |(1,93,261+14,143)||| |Pain and suffering<br>|`35,000/-|`18,000/-| |Loss of amenities<br>|`50,000/-|`12,000/-| |Deformity and loss of marital||| |prospects<br>|`1,00,000/-|`25,000/-| |Compensation for economic||| |loss sustained due to the<br>|`1,00,000/-|`33,750/-| |disability||| |(15,000x15x15)||| |100||| |Total<br>|`4,81,250/-|`3,03,654/-| M.A.C.A.No.2318 of 2012 :-5-: ## 10. In **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and anr. (AIR 2014 SC 736)** , the Apex Court held as follows ; “12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that 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 upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: **HEAD COMPENSATION AMOUNT** Pain and suffering already undergone Rs.3,00,000/and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts etc., and loss of amenities in life on account of permanent disability. Discomfort, inconvenience and loss of Rs.25,000/earnings to the parents during the period of hospitalisation. Medical and incidental expenses during Rs.25,000/the period of hospitalisation for 58 days Future medical expenses for correction Rs.25,000/of the mal union of fracture and incidental expenses for such treatment. M.A.C.A.No.2318 of 2012 :-6-: **HEAD COMPENSATION AMOUNT** TOTAL Rs.3,75,000/- 11. Applying the principles laid down by the Apex Court in **Mallikarjun** 's case (supra), the appellant is entitled for a sum of Rs.3,00,000/- towards pain and suffering, discomforts and loss of amenities in life on account of the permanent disability, since the percentage of permanent disability assessed in Ext.A13 disability certificate being 15%. After deducting Rs.33,750/- awarded by the Tribunal towards 'disability compensation'; Rs.12,000/awarded towards 'loss of amenities', Rs.25,000/- awarded towards 'deformity and loss of marital prospects'; and a further sum of Rs.18,000/- awarded towards 'pain and suffering', the appellant will be entitled for an additional compensation of Rs. **2,11,250/-** [3,00,000–(33,750+12,000+ 25,000+18,000)] under this head. 12. Due to the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 58 days in three different spells. In such circumstances, applying the principles laid down by the Apex Court in **Mallikarjun** 's case (supra) the appellant is awarded a sum of Rs. **25,000/-** towards 'discomfort, inconvenience and loss of earning' for her parents M.A.C.A.No.2318 of 2012 :-7-: during the period of hospitalisation. 13. Towards medical expenses, the Tribunal awarded a sum of Rs.2,07,404/- covered by Exts.A9 and A12 series of medical bills. Towards transportation to hospital, damage to clothing, extra nourishment and attendance expenses, the Tribunal awarded Rs.7,500/-. The appellant had undergone inpatient treatment for a total period of 58 days. Since the medical bills are to the tune of Rs.2,07,404/-, applying the principles laid down by the Apex Court in **Mallikarjun** 's case (supra), the appellant can be awarded a sum of Rs.2,22,404/- (15,000+2,07,404) towards medical and incidental expenses during the period of hospitalisation, as against Rs.2,07,404/- awarded towards 'medical expenses' and Rs.7,500/- towards transportation charges, resulting an additional compensation of Rs. **7,500** /-. In the result, the appellant/claimant will be entitled for an additional compensation of Rs. **2,43,750** /- (2,11,250+25,000+ 7,500) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the vehicle is not in dispute, the 4[th] respondent insurer shall deposit the said amount before the Tribunal, within a period of 2 months from the date of M.A.C.A.No.2318 of 2012 :-8-: ## receipt of a certified copy of this judgment. Appeal is disposed of as above. There will be no order as to costs. Sd/- **JUDGE** **C.T.RAVIKUMAR** Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/24.7.17 //True copy// P.A.to Judge