Aslam (minor) represented by his mother Haseena v. The Branch Manager, The Reliance General Insurance Co-Ltd, Cochin Branch

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** **MACA.No. 3461 of 2015 () -------------------------** **AGAINST THE AWARD IN O.P.(M.V.) 919/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOLLAM DATED 21.5.2015** ## **APPELLANT/PETITIONER:** **----------------------** ## **ASLAM** **S/O.HASEENA, AGED 11 YEARS, VATHIYATHU PADEETTATHIL VEEDU, (KUTTILYIL) KALLELIBHAGOM MURI, KALLELIBHAGOM P.O., KARUNAGAPPALLY, KOLLAM, MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SMT. HASEENA, W/O.NISAM, VATHIYATHU PADEETTATHIL VEEDU(KUTTILYIL)KALLELIBHAGOM MURI, KALLELIBHAGOM P.O., KARUNAGAPPALLY, KOLLAM.** **BY ADVS.SRI.K.SIJU SMT.RENY ANTO** ## **RESPONDENT(S)/3RD RESPONDENT:** **-------------------------** **THE BRANCH MANAGER THE RELIANCE GENERAL INSURANCE CO-LTD, COCHIN BRANCH, KOCHI 682001** **BY ADV. SRI.GEORGE CHERIAN (SR.) ADV. SMT.K.S.SANTHI ADV. SMT.LATHA SUSAN CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06-10-2016, ALONG WITH MACA. 3462/2015, MACA. 3474/2015 & MACA. 3478/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of October, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The injured petitioners preferred these appeals on being aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Kollam as per the common judgment and awards in O.P.(M.V.)Nos.919/2011, 944/2011, 1091/2011 and 948/2011. MACA 3461/2015 is directed against the award in O.P.(M.V.)No.919/2011, MACA 3462/2011 is preferred against the judgment and award in O.P.(M.V.)No.944/2011, MACA 3474/2015 is directed against the judgment and award O.P.(M.V.)No.1091/2011 and MACA 3478/2015 is directed against the judgment and award in O.P.(M.V.)No. 948/2011. The appellants sustained injuries in the same occurrence i.e. in a motor accident occurred on 4.5.2010 and that the above mentioned claim petitions were filed seeking compensation therefor. The claimant in O.P.(M.V.) M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 2 No.1091/2011 was the driver of the Maruti Alto car bearing registration No.KL-23 B 562 and the other claimants were the passengers thereon. When the said car reached near Kannettil Bridge at Karunagappally the offending vehicle which is the lorry bearing registration No.KL-07 BA 7514 dashed against it and consequently all the claimants sustained injuries and obviously it is seeking compensation for the injuries sustained in the said accident that they filed the above mentioned claim petitions under Section 166 of the M.V. Act. In O.P.(M.V.)No. 919/2011 the Tribunal granted a total compensation of Rs.47,990/-, in O.P.(M.V.) No.944/2011 the Tribunal granted a total compensation of Rs.1,65,475/-, in O.P.(M.V.)No. 1091/2011 the Tribunal granted a total compensation of Rs.19,154/- and in O.P. (M.V.)No.948/2011 the Tribunal granted a total compensation of Rs.3,15,991/-. In all the said claim petitions the amount awarded was ordered to carry interest at the rate of 9% per annum from the date of petition till realization. As noticed hereinbefore, it is dissatisfied with the quantum of compensation that the captioned appeals M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 3 have been preferred seeking enhancement of compensation. In the circumstances expatiated above all these appeals were heard jointly and they are being disposed of by this common judgment. 2. We have heard the learned counsel appearing for the appellants in all these appeals and also the learned counsel appearing for the insurer who was the 3[rd] respondent before the Tribunal. Evidently there is no dispute regarding the accident, the cause of the accident as the negligence from the part of the second respondent in the claim petitions and also the insurance coverage of the offending vehicle viz. lorry bearing registration No.KL-07 BA 7514 at the time of the accident. In such circumstances the only question to be considered in this appeal is regarding the entitlement of the appellants to get the enhanced compensation. 3. **MACA 3461/2015:** This appeal arises from O.P.(M.V.)No.919/2011. The appellant was aged only 6 years at the time of the accident. The claim petition as also this appeal were filed through his M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 4 mother. Going by Ext.A27 wound certificate he sustained lacerated wound, deformity on right leg and deformity on left wrist. Ext.A28 would reveal that on further diagnosis it was found that he sustained fracture on both bone of the left leg and fracture on both bones of the left hand. Evidently he had been an inpatient for a period of 14 days going by Exts.A28 and A29. The Tribunal granted only an amount of Rs.47,990/- as compensation, as per the impugned award. 4. Obviously, there is no proven claim for the appellant of having sustained any permanent disability. In other words, the appellant has not produced any document to establish that the injuries sustained in the accident resulted in permanent disability. In such circumstances, the Tribunal did not grant any compensation under the said head. The learned counsel for the appellant contended that taking note of the fact that the appellant was only aged 6 years and he sustained both bones fractures on the left leg and left hand besides the other injuries the amount granted under the head pain and suffering is too meagre and it M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 5 invites an interference for upward modification of awards under different heads. It is the further submission that no amount whatsoever was granted by the Tribunal towards loss of amenities. 5. The learned counsel appearing for the 3[rd] respondent submitted that when there is nothing on record to show that the appellant had incurred permanent disability owing to the injuries sustained in the accident the Tribunal cannot be found fault with, in not granting compensation for permanent disability and the amount granted under the head 'pain and suffering' is adequate and it commensurate with the injuries sustained. In short, it is the submission that the Tribunal granted just compensation and therefore no appellate interference is warranted. 6. True that no evidence whatsoever was tendered by the appellant to establish that the injuries sustained in the accident resulted in permanent disability. But, at the same time Ext.A28 would reveal that in the accident he sustained fracture of both bones on the left leg as also on the left hand. He was aged only 6 years at the time of the M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 6 accident. He remained as an inpatient for a period of 14 days. Taking note of the injuries sustained and that too at the tender age of 6 years, we are of the view that he must have suffered enormous pain owing to the injuries sustained in the accident. In such circumstances, we are inclined to grant Rs.15,000/- additionally under that head. Taking note of such circumstances we are also of the view that an amount of Rs.15,000/- additionally can be granted under the head loss of amenities as they indubitably, reduced his enjoyment of life for quite a long time. It is granted. The Tribunal took only 7 days as the period of hospitalization. However Exts.A28 and A29 would reveal that the total number of days of hospitalization is 14. In such circumstances, towards extra nourishment, at the rate of Rs.100/- per day, an amount of Rs.700/- more is granted. Under the head bystander's expenses, at the rate of Rs.200/- per day, the appellant would also be entitled to get an amount of Rs.1,400/- more. It is granted. In the light of the discussion as above, the appellant is entitled to get an additional compensation of Rs.32,100/- (Rupees thirty two M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 7 thousand one hundred only). It is granted. ## 7. **MACA 3462/2015:** This appeal arises from O.P.(M.V.) 944/2011. At the time of the accident the appellant was a housewife aged 28 years. True that in the claim petition the appellant claimed that she was a tailor by profession and was earning Rs.5,000/- per month. However, no evidence was adduced by the claimant before the Tribunal to substantiate the said contention regarding her occupation and income. Ext.A21 wound certificate would reveal that she sustained lacerated wound with tissue loss on the right cheek, deformity of left upper leg and fracture on humerus. She had been an inpatient for a period of 6 days. No disability certificate was produced by the appellant before the Tribunal. Still, the Tribunal, taking note of the nature of the injuries and the treatment underwent by her assessed a functional disability of 4% for the purpose of granting compensation. In the absence of evidence proving the claim that she was a tailor by profession she was treated as a housewife and upon equating her services to the family in terms of money, the M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 8 monthly income was fixed as Rs.4,000/-, for calculation purpose. The Tribunal altogether granted a total compensation of Rs.1,65,475/-. Though the learned counsel for the appellant raises the contention that the Tribunal fixed the monthly income meagrely, we do not find any reason to accept the said contention in view of the fact that the Tribunal had rightly treated her as a housewife in the absence of evidence to prove her claimed status of a tailor and correctly fixed her income notionally as a housewife. It is to be noted that a Division Bench of this court in **Krishnadas v. Henry Joseph [2011 (4) KLT 716]** following the decision of the Hon'ble Apex Court in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** took the monthly income of a housewife only as Rs.3,000/-. Taking note of the fact that the accident involved in this case had occurred subsequent to the accident involved in those cases, we do not find any reason to interfere with the notional fixation of the monthly income by the Tribunal as Rs.4,000/-. The Tribunal took the multiplier correctly as 17 with reference to the appellant's age on the date of the M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 9 accident in terms of the schedule given in the decision of the Hon'ble Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** . As noticed hereinbefore even without a medical certificate the Tribunal assessed the disability as 4%. The appellant cannot have a grievance relating such assessment in view of her failure to adduce evidence for sustaining the claim of higher percentage of disability. In such circumstances, we do not find any reason to interfere with the compensation granted by the Tribunal towards loss of earning power. However, on going through the impugned judgment and award and appreciating the rival contentions, we are of the view that the appellant is entitled to get enhancement under certain other heads. The injuries revealed from Ext.A21 would reveal that there was a lacerated wound on the right cheek and it resulted in tissue loss from right cheek. The appellant was a lady aged only 28 years. In such circumstances, we are of the view that the Tribunal ought to have granted compensation under the head disfigurement. We are of the view that an amount of Rs.15,000/- can be M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 10 granted under that head. Accordingly, it is granted. The treatment underwent by the appellant would reveal that internal fixation was done with respect to the fracture sustained by the appellant. Ext.A23 is the series of medical bills. Taking note of the fact that internal fixation was done there cannot be any doubt with respect to the position that the appellant would have to incur some expenses for removal of the implant. In such circumstances, we are inclined to grant an amount of Rs.10,000/- towards future treatment expenses. Towards damage to clothing the Tribunal granted only an amount of Rs.500/-. We are inclined to grant an amount of Rs.500/- more under that head. Despite the persuasive argument of the learned counsel for the appellant, we do not find any reason to hold that the appellant is entitled to get enhanced compensation under any other heads. In the result, the appellant will be entitled to get an additional compensation of Rs.25,500/(Rupees twenty five thousand five hundred only). It is granted. M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 11 ## 8. **MACA 3474/2015:** This appeal arises from O.P.(M.V.) 1091/2011. In fact the appellant is the person who drove the Maruti Alto Car involved in the accident at the time of the accident. He was then aged 31 years going by Ext.A16. He claimed that he was a driver by profession and was earning 5,000/- Saudi Riyals which is approximately Rs.60,000/-, per month. Despite taking up such averments in the claim petition, he had not tendered any evidence to establish his averments regarding occupation and income. In such circumstances, the Tribunal fixed the monthly income as Rs.5,000/-. The contention of the appellant is that the Tribunal erroneously fixed the monthly income and it requires interference. Ext.A15 would reveal that he sustained swelling with abrasion on right foot, multiple skin abrasion on both hands and legs, swelling on right elbow and fracture on right 5[th] toe meta tarsal. Ext.A16 would reveal that he had been an inpatient at Sree Narayana Trusts Medical Mission, Kollam for two days. The Tribunal granted an amount of Rs.19,154/- as total compensation. The learned counsel for M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 12 the appellant submitted that a glance at the schedule of compensation given in the impugned judgment would reveal that the Tribunal has granted only inadequate amount as compensation under different heads. 9. Per contra, the learned counsel for the Insurance Company submitted that a perusal of the schedule of compensation would reveal that the appellant was adequately compensated under all heads. On going through the schedule of compensation, we are of the view that the appellant is entitled to get enhanced compensation only under three heads viz. loss of earning, damage to clothing and loss of amenities. The Tribunal for the purpose of granting compensation towards loss of earning, took the period of loss of earnings as one month. Taking note of the fact that the fracture was on the 5[th] toe meta tarsal, we are of the view that the period of loss of earnings ought to have been taken, especially taking note of the fact that he was a person holding a driving licence, as two months. Accordingly, the period is re-fixed as two months. The Tribunal fixed the monthly income only as Rs.5,000/-. The M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 13 appellant was aged 31 years when the accident occurred on 4.5.2010. True that he had not adduced any evidence to establish his occupation and income. However, we are of the view that in such circumstances the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** should act as a guidance for fixing the monthly income notionally. In that case the Apex court fixed the monthly income of a coolie who met with an accident in the year 2004 notionally at Rs.4,500/-. The accident in question occurred about six years since the accident involved in the said case. Therefore, we are inclined to fix the monthly income as Rs.6,500/- for calculation purpose. Based on the fixation of the monthly income as Rs.6,500/- and the period of loss of earning as two months, the appellant would be entitled to get an amount of Rs.8,000/- additionally under that head. It is granted. The nature of the injuries sustained by the appellant would indicate damage to the dresses worn by him at the time of the accident. In that circumstances, we M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 14 are inclined to grant Rs.500/- more towards damage to clothing. Though the appellant sustained an injury on the 5[th] toe meta tarsal the Tribunal did not grant any amount towards loss of amenities. Taking note of the nature of the injuries and the period of convalescence, we are of the view that it is only proper to grant an amount of Rs.5,000/towards loss of amenities. In the result, the appellant is entitled to get an additional compensation of Rs.13,500/(Rupees thirteen thousand five hundred only). It is granted. 10. **MACA 3478/2015:** This appeal arises from the judgment and award in O.P.(M.V.) 948/2011. The appellant was aged only 22 years and she was an unmarried lady, on the date of the accident. Ext.A6 would reveal that she sustained lacerated wounds on the forehead and chin. Ext.A7 would reveal that she sustained fracture on the left femur (closed), fracture of mandible, fracture of distal radius left, fracture of ¾[th] meta carpal and contusion left leg. She remained as an inpatient in KIMS Hospital, Thiruvananthapuram for a period of 7 days going by Ext.A7. No disability certificate M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 15 was produced before the Tribunal by the appellant. Still, taking note of the nature of the injuries sustained and their aftermath the Tribunal assessed the permanent disability as 10%. There is no case for the appellant that the multiplier was wrongly adopted by the Tribunal. Though the learned counsel for the appellant contended that the Tribunal went wrong in fixing the monthly income as Rs.4,000/-, we are of the view that the said contention is devoid of any merit as despite taking up a contention that she was a tuition teacher no evidence whatsoever was adduced by the appellant to establish the said contention. The appellant had not mounted the box at least to give evidence in support of such contentions. In such circumstances, we do not find any reason to hold that the Tribunal fixed the monthly income meagrely and we are of the view that the monthly income was taken properly by the Tribunal and it invites no interference. But at the same time going by the nature of the injuries sustained, we are of the view that the Tribunal ought to have taken six months as the period of loss of earning. In that view of the matter, the appellant is entitled M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 16 to get an amount of Rs.12,000/- additionally under that head. It is granted. Towards damage to clothing, an amount of Rs.500/- is granted additionally. The discussion in paragraph 54 would reveal the nature of the treatment underwent by the appellant. It would reveal closed interlocking, nailing of fracture left femur, closed reduction + K wire fixation of fracture distal radius left and CR + transfixation K wires of fracture, 3/4[th] meta carpal left hand and open reduction and internal fixation for fracture mandible, were done as part of the treatment. Taking note of such circumstances, we are of the view that it is only just and proper to grant an amount of Rs.15,000/- more towards compensation for pain and suffering. It is granted. The wound certificate would reveal that she sustained fracture on mandible. In such circumstances it is evident that she must have had nutrient food, that too in liquid form. In such circumstances, we are inclined to grant an amount of Rs.1,300/- more towards extra nourishment. The Tribunal granted only an amount of Rs.28,800/- towards loss of amenities and enjoyment in life. Evidently, she sustained M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 17 fracture on radius and fracture on left femur besides fracture of mandible. In such circumstances and taking note of the period of hospitalization, we are of the view that the appellant has to be granted an amount of Rs.10,000/- more towards loss of amenities and enjoyment in life. In view of the aforesaid discussion, the appellant is entitled to get an amount of Rs.38,800/- (Rupees thirty eight thousand eight hundred only) additionally. It is granted. 11. In the result, MACA 3461/2015 is allowed and the appellant is awarded an additional compensation of Rs.32,100/-. MACA 3462/2015 is allowed and the appellant is awarded an amount of Rs.25,500/- as additional compensation. MACA 3474/2015 is allowed and the appellant is granted an additional compensation of Rs.13,500/- and MACA 3478/2015 is allowed and the appellant is awarded an additional compensation of Rs.38,800/-. The additional amount granted in all the above appeals will carry interest at the rate of 8% from the date of respective petitions till realization. The third respondent- M.A.C.A.Nos.3461, 3462, 3474 & 3478 of 2015 18 insurer is directed to deposit the said amount along with interest in all the above appeals within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs in all these appeals. Sd/- **JUDGE** Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/