Anu Mary George v. Biju Mathew and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 21[ST] DAY OF JUNE 2021 / 31ST JYAISHTA, 1943 MACA NO. 1640 OF 2012** **AGAINST THE AWARD IN OP(MV) 1385/2006 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL MUVATTUPUZHA, ERNAKULAM** ## **APPELLANT/PETITIONER:** **ANU MARY GEORGE AGED 16 YEARS (MINOR), D/O. GEORGE, KALLARACKAL MALIACKAL HOUSE, KUNNATHUPARA KARA, MANAKKADU VILLAGE, THODUPUZHA, REPRESENTED BY FATHER AND NATURAL GUARDIAN GEORGE, S/O. LATE THOMAS K.T. DO-DO-** BY ADV SRI.SOORAJ T.ELENJICKAL ## **RESPONDENTS/RESPONDENTS:** |**1**|**BIJU MATHEW**| |---|---| ||**S/O. MATHEW, MUKKADANCHERIL HOUSE,**| ||**NEAR FISH MARKET, THODUPUZHA PIN-685584.**| |**2**|**THE UNITED INDIA INSURANCE CO. LTD.**| ||**PERUMBAVOOR-683842.**| |**3**|**MATHEW JOSEPH**| ||**PEECHATTU HOUSE, OONNUKAL.P.O.,**| ||**KOTHAMANGALAM. PIN-686691.**| ||**R2 - ADV.P.K.SANTHAMMA**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.BABU, J.** ## **========================= M.A.C.A No.1640 of 2012** **==========================** Dated this the 21[st] day of June, 2021 ## **JUDGMENT** This appeal, filed under Section 173 of the Motor Vehicle Act, 1988, arises from the award dated 16.7.2011 in O.P(MV) No.1385/2006 of the Motor Accidents Claims Tribunal, Muvattupuzha (for short 'the Tribunal'). The petitioner is the appellant. Respondents 1 and 3 are the driver and owner respectively of the offending vehicle. Respondent No.2 is the insurer. 2. The parties will be referred to as per their status in the Original Petition. 3. Heard Sri.Sooraj T.Elanjickal, the learned counsel for the petitioner and Smt.P.K.Santhamma, the learned counsel for respondent No.2. 4. The petitioner was a minor girl aged 11 years at the time of accident. On 4.11.2006 at about 10.30 am while she was crossing Thodupuzha-Muvattupuzha Public Road at Vengachuvadu, a car bearing registration No.KL-17A-0589 driven by the 1[st] respondent in MACA NO. 1640 OF 2012 3 a rash and negligent manner hit down her causing serious injuries to her. It is alleged that the accident occurred solely due to the rash and negligent driving of the offending car by the 1[st] respondent. 5. The insurer admitted that the offending vehicle was insured in the name of the 3[rd] respondent during the relevant period. 6. The evidence in this case consists of Ext.A1 to A17 marked on the side of the petitioner and Ext.B1 marked on the side of the respondents. 7. The Tribunal, after appreciating the rival contentions on the basis of the material placed before it, recorded a finding that the accident occurred due to the negligence of respondent No.1 and awarded a sum of Rs.68,100/- towards compensation. 8. The learned counsel for the petitioner contended that the compensation awarded is not just and reasonable. Per contra, the learned counsel for the insurance company submitted that the amount awarded is just and reasonable in view of the nature of injuries sustained by the petitioner. The petitioner sustained the following injuries in the incident: i) Fracture of left neck of femur. ii) Fracture of right clavicle . iii) Fracture of left proximal neck of humerus. iv) Tenderness over left hip and shoulder. v) Multiple abrasion over both knee and feet dorsum. MACA NO. 1640 OF 2012 4 vi) Laceration over vertex. 9. The petitioner admittedly underwent inpatient treatment for 25 days. 10. The Tribunal fixed the compensation under different heads as narrated below: General expenses: Transport to hospital, damage to cloth, extra nourishment, attendance expenses etc. (25 days IP) Rs. 7,000/Medical expenses Rs.26,025/Pain and suffering Rs.20,000/Loss of amenities Rs.15,000/__________ Rs.68,025/========== 11. The learned counsel for the petitioner submitted that the compensation awarded under the head 'pain and suffering' is extremely low taking into account the age of the petitioner at the time of the accident and other surgical procedures undergone by her in the hospital. 12. Ext.A7 accident register cum wound certificate shows that the petitioner was admitted in MOSC Medical College Hospital, Kolencherry on 4.11.2006. She remained in the hospital as an impatient till 15.11.2006. She was discharged with advice to have a review after four weeks. MACA NO. 1640 OF 2012 5 13. Ext.A13 inpatient discharge summary dated 11.10.2006 shows that the petitioner was admitted in the hospital on 8.10.2006 for the purpose of implant removal. 14. Ext.A9 discharge summary narrates the treatment history of the petitioner as described below: “Vitals - Stable Laceration over vertax (sutured by surgery on call) RT. Shoulder -Deformity + Crepitus Movement Rt. Shoulder -painful + restricted No distal N/V deficit Lt. Upper limb : Swelling + tenderness+ over prox. arm movement -painful & restricted No distal N/V deficit Lt. Lower Limb : shorting + Limb in external rotation movement painful & restricted No distal N/V deficit” 15. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs [Vide _**Mallikarjun v. Divisional Manager, National Insurance Co. Ltd. (AIR 2014 SC 736)]**_ 16. The learned Author Harvey McGregor in his book on Damages (The Common Law Library No.9, Fourteenth Edition, Page No.1214) deals with the term 'pain and suffering' as follows: > “ _The term “pain and suffering” has been used so constantly by the courts without any clear distinction between the two words that it is now a term of art. It has been suggested that “pain” is the_ MACA NO. 1640 OF 2012 6 _immediately felt effect on the nerves and brain of some lesion or injury to a part of the body, while “suffering” is distress which is not felt as being directly connected with any bodily condition. On this analysis pain needs no further elucidation; it may be noted that it will include, for the purpose of damages, any pain caused by medical treatment or surgical operation rendered necessary by the injury inflicted by the defendant. As to suffering, this would seem to include fright at the time of the injury and fright reaction, fear of future incapacity, either as to health, sanity or the ability to make a living, and humiliation, sadness and embarrassment caused by disfigurement.”_ ## 17. The learned Author in Halsbury's Laws of England (Fourth Edition, para 883) writes thus on pain and suffering: _“Damages are awarded for the physical and mental distress caused to the plaintiff, both pre-trial and in the future, as a result of the injury. This includes pain caused by the injury itself and any treatment intended to alleviate it; the awareness of and embarrassment at the disability or disfigurement, or suffering caused by anxiety that the plaintiff's condition may serious deteriorate.”_ 18. This Court visualizes the 'pain' suffered by the petitioner consequent to the injury and also the 'pain' caused by the medical treatment and surgical operation undergone by her. The Court also takes note of the shock, frustration, fear of future incapacity and embarrassment suffered by the petitioner who was only a 11 year old school going child. 19. The concept of 'just compensation' 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 MACA NO. 1640 OF 2012 7 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 [Vide _**National Insurance Co. Ltd v. Pranay Sethi(2017ACJ 2700)]** ._ _20._ In the backdrop of the above discussed principles and taking into account the material placed before the court, I am of the view that the amount of compensation awarded to the petitioner towards pain and suffering is not reasonable and I hold that the petitioner is entitled to a sum of Rs.50,000/- towards pain and suffering. 21. The Tribunal granted only Rs.7,000/- towards general expenses including transport to hospital, damage to cloth, extra nourishment, attendance expenses etc. 22. The amount so awarded towards general expenses also requires reconsideration. I am of the view that a sum Rs.9,000/should have been awarded to the petitioner under general expenses. 23. Thus, I come to the conclusion that the petitioner is entitled to enhanced compensation as narrated below: MACA NO. 1640 OF 2012 8 Pain and suffering : Rs.30,000/General expenses : Rs. 2,000/__________ Rs.32,000/========== In the result, this appeal is allowed in part. The petitioner is entitled to a sum of Rs.32,000/- as enhanced compensation with 8% interest from the date of petition. The 2[nd] respondent insurance company will deposit the amount within three months from the date of receipt of a certified copy of this judgment. The original award will stand modified to the above extent. ## **Sd/-** **K. BABU JUDGE** ab