Anju (minor) represented by Rathnavalli v. K.A Abdul Rahiman, Abdul Samad.K., United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940** ## **MACA.NO. 1401 OF 2012** **AGAINST THE AWARD IN O.P.(M.V.) NO.382/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY DATED 21-05-2010** ## **APPELLANT/PETITIONER :** **ANJU, AGED 12 YEARS, D/O.SREEDHARAN, REP. BY MOTHER M.RATHNAVALLI, W/O.SREEDHARAN, KOLATHUMKARA HOUSE, P.O.VILAYAMCODE, KANNUR DISTRICT. BY ADV. SRI.I.V.PRAMOD** ## **RESPONDENTS/RESPONDENTS:** |**1**|**K.A ABDUL RAHIMAN**| |---|---| ||**S/O.MAYIN KOTTMBALA, NEAR MUNICIPAL OFFICE,**| ||**TALIPARAMBA, KANNUR DISTRICT-670 141.**| |**2**|**ABDUL SAMAD.K.,**| ||**S/O.ABDUL RAHIMAN K., SALAFI MANZIL,**| ||**CHERUKKODE, KANNUR DISTRICT-670152.**| |**3**|**UNITED INDIA INSURANCE CO.LTD.**| ||**CHOVVA BRANCH, KALTEX JUNCTION,**| ||**KANNUR 670 001.**| ||**BY ADV. SRI.P.K.MANOJKUMAR**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 1401 OF 2012** **2** ## **J U D G M E N T** This appeal is preferred against the award in O.P. (M.V.) No.382 of 2003 of the Motor Accidents Claims Tribunal, Thalassery. The appellant in this case sustained injuries in a motor accident when she was aged 3 years, subsequently she was paralysed. The Motor Accidents Claims Tribunal awarded compensation of Rs.8,01,700/(Rupees Eight Lakh One Thousand Seven Hundred only) and directed the insurer to satisfy the award. Being aggrieved by that award amount, the injured preferred this appeal. 2. It would be relevant and useful to mention the facts leading to the accident. On 28.09.2002 at 4.45 p.m., when the minor Anju was walking through the side of the road at Pilathara along with her father, a bus KL-13/B-241 driven in a rash and negligent manner knocked down her, as a result she sustained serious injuries. Immediately she was removed to Pariyaram Medical College Hospital. The accident was due to the negligence of the driver of the bus. The owner and driver contested the matter. The insurer admitted the insurance **MACA.NO. 1401 OF 2012** **3** of the vehicle. Claimants evidence consists of oral testimony of PW1 and documentary evidence of Exts.A1 to A16. The disability certificate was marked as Ext.X1. 3. Claimant was a minor and she was represented by her mother Rathnavalli in the lower court. Now she is aged 20 years and a student of 2[nd] year B.Com at St. Joseph College, Pilathara. She sustained Polytrauma, Peraplegia, Bylateral Haemothorex and Thoraxic duct injury. Immediately after the accident, she was removed to Pariyaram Medical College Hospital and subsequently treated at Unity Health Complex, Mangalore and treated there for Neurological deficit. Her both legs are paralysed, she cannot travel without the help of wheel chair. Her father is helping her. Bystander help is necessary. Hence, she is entitled to get just amount as compensation. 4. In **Yadava Kumar** v. **D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567)** Apex Court reiterated the principle in relation to the assessment of damages for personal injuries cases as follows: - “ 17. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of **MACA.NO. 1401 OF 2012** **4** injuries which he admittedly suffered, and about which the evidence of PW1 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome. 18. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a 'just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of 'just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (See **Mrs. Helen C.** **Rebello and Ors. v. Maharashtra State Road Transport Corpn. and Anr.** MANU/SC/0621/1998: AIR 1998 SC 3191). 19. This Court also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (See **Hardeo Kaur and Ors. v. Rajasthan State Transport Corporation and Anr.** MANU/SC/0235/1992: (1992) 2 SCC 567). 20. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter **MACA.NO. 1401 OF 2012** **5** of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation”. 5. In this context, I have examined the medical evidence in this case. Ext.A4 is the admission cum discharge certificate issued from Pariyaram Medical College Hospital. It shows that “Bilateral Intercostal drainage” surgery was done to the petitioner. The initial hospitalization was for 3 days from 28.09.2005 to 30.09.2002, subsequently she was referred at request. Ext.A5 is the certificate issued by Dr.Arjun Shetty, Consultant Neurosurgeon, Unity Hospital, Mangalore dated 9[th] November 2002. It shows that Miss. Anju, aged 3 years was admitted under his care at Unity Hospital, Mangalore from 30.09.2002 to 08.10.2002. She sustained a concussive head injury belated hemothorax and fracture D3 vertical body with total transaction of the spinal cord and associated paraplegia. During the hospital stay Miss Anju was subjected to CT Scan of the head, MRI of the thoracic spine and chest X rays. The doctor opined that the injuries sustained by Miss. Anju was of a grievous nature and her neurological deficit is likely to be **MACA.NO. 1401 OF 2012 6** permanent and that she will require aid in doing daily activities. Ext.A6 is the MRI Scan report dated 04.10.2002, which shows fracture D3 vertebral body with mild retropulsion of left side. Fracture lamina at D3 level on left side. Normal kyphosis of the dorsal spine is noted. Vertebral bodies show normal alignment and signal intensity. Focal extra axial collection noted at D3 level anteriorly on left side. This is hyper intense on T1, T2 with and FIESTA sequences. An irregular extra axial CSF collection seen at this level, which is tracking posteriorly to posterior para spinal soft tissue. Discontinuity of cord seen between D3 and D4 vertebral level with retraction and bush border appearance of upper segment. Focal altered signal intensity noted in cord at C7/D1 level. Chest tube seen in situ bilaterally with hydro thorax on both sides. In personal injury cases the compensation has to be assessed separately as pecuniary and special damages. The object behind this is to compensate the injured so far as money can compensate. When compensation is to be awarded for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken **MACA.NO. 1401 OF 2012** **7** into account. Amount of compensation for non-pecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. 6. The Discharge summary and discharge record issued from Indo-American Hospital, Vaikom was marked as Ext.A7. It shows there was admission and treatments for 28 days from 25.04.2005 to 21.05.2005. She was treated with rehabilitative measures like Physiotherapy and occupational therapy. Exercise given to improve Trunk balance. Gait training given with B/L HKAFO and parallel bars. She was able to walk with the help of Orthosis and Parallel Bars. Physiological cost index improving. Chest Physio Given. Patient has to continue the rehab programme as advised. Another case summary and discharge card Ext.A8 issued from Indo American Hospital, Vaikom, shows that there was hospitalization for a period of 41 days from 18.06.2005 to 29.07.2005. She was treated with rehabilitative measures. Patient improved. Now the patient is able to walk few steps with **MACA.NO. 1401 OF 2012 8** the help of orthosis and walker. Ext.A9 is the observations and diagnosis by Dr.R.vijayan, Specialists Hospital. Ext.A10 is the discharge card issued from Pariyaram Medical College Hospital, showing the initial treatments. Ext.A11 is the discharge summary issued from Unity Health Complex, Mangalore associated with Ext.A5. Ext.A12 is another discharge card issued from Pariyaram Medical College. Ext.A12 is related to the 2[nd] admission of the petitioner in Pariyaram Medical College for a period of 34 days from 08.10.2002 to 12.11.2002. Ext.A14 series are medical bills of 150 Nos. and Ext.A15 series are medical bills of 26 Nos. The total medical expenses claimed by the petitioner is for a sum of Rs.85,283/-. ## 7. Apex Court in **Rajkumar** v. **Ajay Kumar and Anr.** **[2011 ACJ 1]** held that the injured is entitled to get just amount of compensation which reads as follows: - (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that **MACA.NO. 1401 OF 2012** **9** percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 8. Appellant was a minor aged 3 years at the time of accident. The Tribunal took Rs.3,000/- as the notional income. Now her both legs are paralysed. The Medical Board, Pariyaram Medical College assessed 100% disability but the subsequent disability certificate shows that the injured has 60% disability. There is difference in the disability assessed by the Kerala Co-operative Hospital Complex and Advanced Centre for Medical Services, Pariyaram and the Medical Board, Kannur. In the circumstance, this Court referred the injured to Medical Board, District Hospital, Kannur and they opined that the injured is assessed to be paraplegia ASIA grade A with 75% permanent loco motor disability to whole body as per Gazette of India No.61 dated 05.01.2018. The assessment **MACA.NO. 1401 OF 2012** **10** of compensation in permanent disability case would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform standard and yardstick provided for assessing such compensation. When two persons sustain similar injury, that can attract the same compensation, but the heads under which, compensation can be attributed are truly amazing. The scope for awarding general damages and special damages are too wide for articulation. It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. Generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. 9. Apex Court in **V.Mekala Versus M.Malathi and Another [(2014) 11 Supreme Court Cases 178]** held as follows: 20. Therefore, in the light of the principles laid down in the aforesaid case, it would be just and proper for this Court, and **MACA.NO. 1401 OF 2012** **11** keeping in mind her past results we take Rs.10,000/- as her monthly notional income for computation of just and reasonable compensation under the head of loss of income. Further, the High Court has failed to take into consideration the future prospects of income based on the principles laid down by this Court in the catena of cases referred to supra. Therefore, the appellant is justified in seeking for re-enhancement under this head as well and we hold that the appellant claimant is entitled to 50% increase under this head as per the principle laid down by this Court in **Santosh Devi v. National Insurance Co. Ltd. (2012) 6 SCC 421** . The relevant paragraph reads as under:(SCC pp.426-27, para13). “13. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , another two-Judge Bench considered various factors relevant for determining the compensation payable in cases involving motor accidents, noticed apparent divergence in the views expressed by this Court in different cases, referred to large number of precedents including the judgments in **U.P.S.R.T.C. V. Trilok Chandra [(1996) 4 SCC 362]** , **Nance v. British Columbia Electric Railway Co. Ltd. [1951 AC 601], Davies v. Powell Duffryn Associated Collieries Ltd.** **(No.2) [1942 AC 601]** and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of compensation by laying down a straitjacket formula under different headings, some of which are enumerated below: (Sarla Verma case, SCC pp.133-34, para 24). Question (i)-Addition to income for future prospects * * * 24. In **Kerala S.R.T.C. v. Susamma Thomas [(1994) 2 SCC 176]** , this Court increased the income by nearly 100%, in **Sarla Dixit v. Balwand Yadav, [(1996) 3 SCC 179]** the income was increased only by 50% and in **Abati Bezbaruah v. Geological Survey of India [(2003) 3 SCC 148]** the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words, “actual salary” should be **MACA.NO. 1401 OF 2012** **12** read as “actual salary less tax”.) The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.” Therefore, taking both the aspects into account, the total amount of compensation under this head is calculated as Rs.22,68,000/[(Rs.10,000x70/100+Rs.10,000x70x/100x50/100)x12x18]. 21. The compensation under the head pain and suffering and mental agony was awarded by the High Court after recording concurrent findings with the award passed by the Tribunal. However, the courts below have not recorded the nature of the permanent disablement sustained by the appellant, while awarding Rs.1,00,000 under this head which is too meagre an amount and is contrary to the judgment of **R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 55]** and **Govind Yadav v. New India Insurance Company Ltd. [(2011) 10 SCC 683]** cases. The relevant paragraphs of Govind Yadav Case, read as under: (SCC p.695, paras 25-26). “25. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meagre. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kind of handicaps and social stigma throughout his life. Therefore, in all such cases, the tribunals and the courts should make a broad guess for the purpose of fixing the amount of compensation. 26. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be **MACA.NO. 1401 OF 2012** **13** met by awarding him a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg.” Therefore, under this head the amount awarded should be enhanced to Rs.2,00,000/- as the doctor PW2 has opined that at the time of walking with support of crutches, the appellant claimant will be suffering pain permanently. Therefore, under this head it has to be enhanced from Rs.1,00,000/- to Rs.2,00,000/-. 22. The loss of amenity and attendant charges awarded by the courts below at Rs.1,00,000/- is also too meagre an amount as the appellant has permanently lost her amenity of both the legs. For the purpose of walking, squatting, running and also studying throughout her life and particularly, at the advanced age, she will be requiring an attendant for giving assistance to attend nature's call and also at the time of sitting or moving around. Therefore, the compensation under this head is required to be enhanced from Rs.1,00,000/- to Rs.2,00,000/- based upon the principle laid down by this Court in Govind Yadav case, the relevant paragraph of which reads as under: (SCC p.695, para 27). 27. The compensation awarded by the Tribunal for the loss of amenities was also meagre. It can only be a matter of imagination as to how the appellant will have to live for the rest of his life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like a normal human being and will not be able to enjoy life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs.1,50,000/- for the loss of amenities and enjoyment of life.” 23. The amount of compensation awarded under the head of “Loss of enjoyment of life and marriage prospects” at Rs.2,00,000 is totally inadequate since her marriage prospect has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, it would be just and proper to enhance the compensation from Rs.2,00,000 to Rs.3,00,000. Insofar as, purchase of crutches periodically, it would be just and proper to award a sum of Rs.50,000/-. 10. Appellant is now aged 20 years and a student of **MACA.NO. 1401 OF 2012 14** B.com at St.Joseph's College, Pilathara. Her both legs were paralysed and she cannot travel. Considering the present Disability of 75% and paraplegia she is entitled to get just amount as compensation. She is a bright student. Therefore, in the light of **Mekala (Supra)** , it would be just and proper to take Rs.10,000/- as her monthly income for awarding just compensation and 40% increase is given for future prospects and the total monthly income comes to Rs.14,000/-. Hence, she is entitled to get Rs.22,68,000/(14,000x12x18x75%) for permanent disability. The learned Tribunal awarded Rs.5,40,000/- on that head and the balance is Rs.17,28,000/-. Along with that an amount of Rs.1,00,000/- is awarded for Future Medical Treatment, Rs.2,00,000/- is awarded for future bystander and nursing expenses, Rs.1,00,000/- is awarded for Pain and sufferings and Rs.5,00,000/- is awarded for Loss of amenities including loss of marriage prospects. The total enhanced compensation is Rs.26,28,000/- (Rupees Twenty Six Lakh Twenty Eighty Thousand only). In view of **Rajesh ad Ors. Vs. Rajbir Singh and Ors. [(2013) ACJ 1403],** she is entitled to get just amount as compensation. Accordingly, **MACA.NO. 1401 OF 2012 15** the appellant is entitled to get an enhanced compensation of Rs.26,28,000/- (Rupees Twenty Six Lakh Twenty Eighty Thousand only) with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. On such deposit by the insurer, an amount of Rs.30,00,000/- (Rupees Thirty Lakhs only) shall be deposited in the name of Anju (the injured) in a Nationalized Bank for a period of twenty years. The balance amount shall be disbursed to her treatment and higher studies. M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge