Ashita (Minor) by Next Friend C. Janaki v. K. Pushpavally and Others

1 MACA No.1269 of 2014 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 25[TH] DAY OF JUNE 2021 / 4TH ASHADHA, 1943 MACA NO. 1269 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 736/2001 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY, KANNUR APPELLANT/S: ``` ``` MINOR ASHITA,AGED 13 YEARS D/O LATE RAJEEVAN AND LATE MAHIJA, REP. BY GRANT MOTHER C.JANAKI, W/O.VASU, SHAHIJA NIVAS, CHAMPAD, P.O PATHIRIYAD, KANNUR DISTRICT, PIN - 670 741. ``` ``` BY ADVS. SRI.V.BINOY RAM SMT.SAJITHA P.SOMAN ``` ## **`RESPONDENT/S:`** 1 ``` 1. K. PUSHPAVALLY, W/O.RAMACHANDRAN SREENIVAS, IRIVERI P.O, KANNUR, 670 613. ``` ``` 2. V. ARAVINDAKSHAN, S/O VISHWANATHAN NAIR, VAYAKKARA HOUSE, MAVILAYI AMSOM, DESOM, VILLAGE, P.O.MAVILAYI, KANNUR DISTRICT, PIN - 670 622. ``` ``` 3. UNITED INDIA INSURANCE COMPANY LTD. KANNUR, PIN - 670 003. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.PREETHY R. NAIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 MACA No.1269 of 2014 ## **C.S.DIAS, J.** ## **====================== MACA No.1269 of 2014** **====================== Dated this the 25[th] day of June, 2021.** ## **JUDGMENT** Life, fate or destiny, whatever you may call it, could not be more treacherous to Ashitha, a nine month toddler, who not only got orphaned on the ill-fated day of 1.12.2000, but also got paraplegic in a gruesome accident. 2. Ashitha, while she was being carried by her mother, who was walking with her husband – the father of Ashitha - through the public road at Vellapanthal, Vellachal, Kannur, a bus bearing registration No.KL-13/B-333 came from Moonuperiya side and mowed down Ashitha's parents, who instantaneously lost their lives. Ashitha miraculously survived, but with serious injuries, including a Type III compound open fracture on both bones of her right leg and 3 MACA No.1269 of 2014 an open fracture to her lower third of left femur, resulting in the amputation of her legs below the knee joint. 3. Ashitha, through her grandmother – next friend - filed OP(MV) 736/2001 before the Motor Accidents Claims Tribunal, Thalassery against the owner, driver and insurer of the bus, claiming compensation for the injuries sustained by her. She also filed OP(MV) Nos 734 and 735/2001 before the same Tribunal, claiming compensation on account of the death of her parents. 4. Ashitha averred that the accident occurred solely due to the rash and negligent driving of the bus by the second respondent. The first respondent was the owner and the third respondent was the insurer. She was treated at Dhanalakshmi Hospital, Kannur and, thereafter, at the Specialists' Hospital, Kochi. She had to undergo six surgeries. She is totally and permanently disabled. She claimed a total compensation of Rs.20,00,000/- from the 4 MACA No.1269 of 2014 respondents. 5. The respondents 1 and 2 filed a written statement admitting that they were the owner and driver of the vehicle, respectively. It was contended that the accident occurred only because the second respondent attempted to avert a head on collision with a vehicle coming from the opposite side. Consequentially, the second respondent moved the vehicle towards the road margin, which resulted in the accident. 6. The third respondent – Insurance Company – in its written statement admitted that the bus had a valid insurance policy, but contended that the accident did not happen due to the negligent driving of the vehicle by the second respondent. It was to avert a major mishap that the second respondent moved the vehicle to the road margin, but the vehicle hit Ashitha and her parents. There was no negligence on the part of the second respondent. 5 MACA No.1269 of 2014 7. The Tribunal, consolidated and jointly tried all the three claim petitions. Ashitha's next friend and a Doctor were examined as PWs 1 and 2 and Exts A1 to A21 were produced and marked in evidence. Ext X1 case sheet issued by the Specialists' Hospital, Kochi was marked as a third party exhibit. 8. The Tribunal by the impugned common award partly allowed all the claim petitions. In Ashitha's claim for compensation on account of the injuries sustained by her, the Tribunal permitted her to realize from the respondents 1 to 3 a sum of Rs.16,02,750/- with interest at the rate of 8% per annum and proportionate costs. The third respondent was directed to pay the compensation. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, Ashitha preferred three appeals before this Court through her next friend. Nevertheless, the appeals filed against the claim for compensation on account 6 MACA No.1269 of 2014 of the death of her parents were withdrawn. Therefore, only the captioned appeal, pertaining to the inadequacy of compensation due to the injuries sustained by Ashitha arises for consideration. 10. This Court by order dated 2.7.2015, dispensed with notice to respondents 1 and 2, as the third respondent did not dispute its liability. 11. Heard Sri.Binoy Ram V, the learned counsel appearing for the appellant and Sri.Mathews Jacob, the learned Senior Counsel appearing for the third respondent – Insurance Company. 12. The sole question that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 13. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of 7 MACA No.1269 of 2014 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 standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 14. Ext A1 FIR and Ext A2 wound certificate substantiates that the accident occurred solely due to the negligence of the second respondent who ran the bus over Ashitha's parents, resulting in Ashitha getting injured and her parents losing their lives. The respondents have in unequivocal terms admitted this aspect in their written statements. Undisputedly, the vehicle was owned by the first respondent and insured with the third respondent. Therefore, it is the third respondent who is liable to indemnify the first respondent of his liability to pay 8 MACA No.1269 of 2014 compensation to Ashitha. 15. Ashitha was only nine months old at the time of the accident. She had no avocation or income. Ext A19 certificate issued by the Specialists' Hospital, Kochi, which was proved through PW2, substantiates that Ashitha's legs had to be amputated and she is 100% disabled. 16. The Hon'ble Supreme Court in **Kajal v. Jagdish Chand [2020 (1) KLT 743 (SC)]** , while dealing with a case of similar nature has fixed the notional income of a 12 year old girl at Rs.4,846/- per month in tune with wages of a skilled labourer with 40% future prospects. 17. Going by the facts in **Kajal** (supra) and that in the case on hand, I am verily of the opinion that Ashitha has had the same fate as **Kajal** and deserves the same benefit to be extended to her as in **Kajal.** Therefore, following the ratio and parameters in **Kajal** (supra), I fix the notional income of Ashitha at Rs.4,000/- per month. Without interfering with 9 MACA No.1269 of 2014 the compensation under the other heads, I enhance the compensation under the head loss due to permanent disability by fixing the notional income of Ashitha at Rs.4,000/-, fixing her disability at 100% and awarding future prospects at 40%. As Ashitha was less than one year at the time of the accident, the multiplier is 14. Hence, I hold that Ashitha is entitled for compensation under the head loss due to permanent disability at Rs.10,80,000/-. The compensation awarded by the Tribunal under the other heads of claim are kept intact. 18. The cases of **Kajal** and **Ashitha** teach us life lessons on how tragic a life can turnout to be, due to reckless driving. With the faintest hope that such instances may not happen I allow the appeal. I place on record the fairness shown by Sri.Mathews Jacob in the case. Resultantly, the compensation is enhanced by a further amount of Rs.5,40,000/- (Rupees Five Lakh Forty 10 MACA No.1269 of 2014 Thousand only) with interest at the rate of 8% per annum from the date of claim petition till the date of deposit and proportionate costs. The third respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal together with interest and proportionate costs within a period of sixty days from the date of receipt of a certified copy of the judgment. As Ashitha has attained majority now, the Tribunal shall release the enhanced compensation to her, in accordance with law. sd/- sks/25.6.2021 **C.S.DIAS, JUDGE** 11 MACA No.1269 of 2014 The figure ‘14’ occurring in paragraph 17 of the judgment dated 25.6.2021 in MACA 1269/2014 is corrected as ‘15’ and the figure “Rs.10,80,000/-” occurring in the same paragraph is corrected as “Rs.10,08,000/-”. The amount “Rs.5,40,000/-” in the operative portion of the judgment is corrected as “Rs.4,68,000/-” as per order dated 24.8.2021 in IA No.1/2021 in MACA 1269/2014. sd/Deputy Registrar