Assilu @ Muhammed Aslam and Others v. Praveen M.P. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 4[TH] DAY OF APRIL 2022 / 14TH CHAITHRA, 1944** ## **MACA NO. 832 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 305/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **OTTAPALAM** ## **APPELLANT/PETITIONER:** - **1 ASSILU @ MUHAMMED ASLAM AGED 17 YEARS (MINOR), REPRESENTED BY GUARDIAN AND MOTHER AYISHA, AGED 42 YEARS,, W/O. ABDUL KHADER, THEKKINKATTIL HOUSE, PATTITHARA, OTTAPALAM TALUK.[DIED]** - **2 ADDL. APPELLANT 2 - ABDUL KHADER AGED 57 YEARS, S/O. LATE ABDUL SALAM.** - **3 ADDL. APPELLANT 3 - AYISHA, AGED 46 YEARS, W/O. ABDUL KHADER.** - **4 ADDL. APPELLANT 4 - THAJUNNEESA, AGED 32 YEARS, D/O. ABDUL KHADER.** - **5 ADDL. APPELLANT 5 - ABDUL NIYAS, AGED 30 YEARS, S/O. ABDUL KHADER.** - **6 ADDL. APPELLANT 6 - NASEERA, AGED 26 YEARS, D/O. ABDUL KHADER,** **ALL RESIDING AT THEKKINKATTIL HOUSE, PATTITHARA, PATTAMBI TALUK, PALAKKAD DISTRICT.** **ADDL. APPELLANTS 2 TO 6 IMPLEADED.** **ADDITIONAL APPELLANTS 2 TO 6 ARE IMPLEADED AS PER THE ORDER DATED 17/10/2016 IN I.A. NO. 3285/16 IN MACA NO. 832/2011. BY ADV R.SREEHARI** ## **RESPONDENTS/RESPONDENTS:** **1 PRAVEEN M.P., S/O.A.V. NAIR, MATHILAKATH PADINHAREPATTIL HOUSE, KOODALLOOR, PIN - 686 595.** MACA No.832/2011 2 - **2 THE MANAGER H & R JOHNSON (INDIA) LTD., 40/937, P.T USHA ROAD, ERNAKULAM, COCHIN - 682 011.** - **3 NATIONAL INSURANC CO. LTD. DIV NO.10 FLAT NO. 101-106 N-1, BMC HOUSE, CONNAUGHT PLACE, NEW DELHI, REPRESENTED BY DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., COLLANNOR DEVASSY SMARAKA BUILDING, ROUND NORTH, THRISSUR 680 020** **BY ADVS. SRI.S.K.AJAY KUMAR SRI.P.JAYASANKAR SRI.R.PADMARAJ SMT.T.N.SREEKALA SRI.N.P.SETHU SRI.K.M.VIKAS** ## **OTHER PRESENT:** **SRI. S.K AJAY KUMAR-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.832/2011 3 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V)No.305/2007 on the file of the Motor Accidents Claims Tribunal, Ottappalam (in short, the Tribunal). The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.5,00,000/-, by the minor victim represented by his guardian, for the injuries sustained by him in a motor accident occurred on 01.10.2006 at about 9.00 a.m at Pattithara due to hit by a car bearing Reg.No.KL7BC 5032 driven by the first respondent while he was standing on the side of the road. Second respondent is the registered owner and the third respondent is the insurer of the offending vehicle. 2. It is alleged that the accident happened due to the rash and negligent driving of the first respondent. 3. Before the Tribunal first and second respondent remained exparte. Third respondent filed written statement admitting the policy coverage with respect to the offending vehicle but denying the rashness and negligent on the part of MACA No.832/2011 4 the first respondent, driver of the offending vehicle. 4. PW1 examined and Exts.A1 to A28 and Exts.X1 to X3 were marked from the side of the appellant/claimant. 5. Tribunal on evaluating the evidence and facts and circumstances found that the accident happened due to the rash and negligent driving of the first respondent and second respondent, the owner, was held liable for the acts of the first respondent and third respondent insurer is directed to indemnify the second respondent, the insured. The Tribunal awarded a total compensation of Rs.3,85,050/- with interest at the rate of 7% from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the injured represented by guardian came up in appeal. Pending the appeal proceedings the victim boy died on 13.06.2016 while undergoing treatment with respect to the injuries sustained and additional appellants 2 to 6 were impleaded as the legal heirs of the minor boy. 7. Vakalath was filed on behalf of the second and third MACA No.832/2011 5 respondents. Heard the learned counsel for the appellants as well as the learned counsel for the third respondent, insurer. 8. Though I.A.No.2703/2011, 1121/2014 and 3284/2016 have been filed for accepting the additional documents those applications were not pressed and was dismissed. 9. According to the learned counsel for the appellants, the boy was bedridden for about 10 years after the accident since he was totally bedridden through out the day the attendant service was necessary to lookafter the child. But the compensation awarded towards attendant expenses is only Rs.3,000/- which is very meagre to the actual loss sustained by the appellants. It is also contended that the compensation awarded towards permanent disability and pain and suffering is also very less. Hence he seeks for enhancement of compensation on those heads. 10. The learned counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no interference MACA No.832/2011 6 is called for at the instance of this Court. 11. In Kajal v. Jagdish Chand and Others [2020 KHC 6144] the Apex Court made an elaborate discussion with respect to the award of compensation in a case where a 12 year old girl sustained 100% permanent disability. 12. On going through that decision it could be seen that, that was a case in which a young girl by name Kajal sustained severe injuries due to hit by a truck on 18.10.2007. The injuries caused severe damage to her brain and the Post Graduate Institute of Medical Education and Research, Chandigarh, reported Kajal has left with a very low I.Q. and severe weakness in all her four limbs, suffers from severe hysteria and severe urinary incontinence and disability has been assessed as 100%. One of the Members of the Board who examined her stated that her I.Q. is less than 20% of a child of her age and her social age is only of a 9 month old child. So while fixing the compensation in that case the Apex Court taken the attendant charges at the rate of Rs.10,000/per month taking into account the fact that cost of one MACA No.832/2011 7 attendant at Rs.5,000/- and she will require two attendants ie. through out 24 hours a day and thereby arrived at annual expense of Rs.1,20,000/- and using a multiplier of '18' Rs.21,60,000/- was awarded towards attendant charges. 13. Towards pain and suffering, in that case, the High Court awarded Rs.3,00,000/-. Taking note of the dictum laid down in Mallikarjun v. Divisional Manager, National Insurance Company Limited & Anr. [(2014) 14 SCC 396] wherein in the case of permanent disability above 90%, the compensation should be at least Rs.6 lakhs and taking into account 100% physical disability to the young girl an amount of Rs.15 lakhs was awarded. 14. Bearing in mind the above principles we have to approach the assessment of compensation in the present case. Minor boy was 13 years old, student. In this case the Medical Board initially certified 60% permanent disability as per Ext.A22 and subsequently as per Ext.X3 issued by Special Medical Board based on examination the minor boy on 29.09.2010 the neurological disability considering the age and MACA No.832/2011 8 education status has been assessed as 80%. Ext.A5 is the wound certificate issued from Westfort Hi-Tech Hospital, Punkunnam, Thrissur in which it has been noted that the victim was unconscious, stable, pupils normal, lacerated wound right forehead, right side face and chin, front of neck. CT shows contusion right brain stem/Rt gangliaine and right thalamus area. He had undergone inpatient treatment for 40 days at Westfort Hospital. PW1 is the Doctor who issued Ext.A9 disability certificate dated 16.11.2007 certifying 18% permanent disability considering neurological status and psychological assessment. In view of Ext.X3 certificate issued by Special Medical Board Ext.A9 has no significance. 15. According to the learned counsel, the victim was totally bedridden after the accident and the 80% neurological disability certified by the Medical Board can be taken as 100% functional disability. 16. The Tribunal calculated the notional income at Rs.15,000/- per annum and the multiplier of '15' was adopted. For assessing permanent disability, 80% neurological disability MACA No.832/2011 9 can be taken as 100% whole body disability since the boy was totally bedridden and ultimately died due to the injuries sustained out of the accident also. So towards permanent disability, the appellants are entitled to get Rs.2,25,000/[15,000x15x100/100]. Deducting the amount already awarded, the balance would be Rs.45,000/ - [2,25,000-1,80,000]. 17. The victim boy was bedridden for 9 years and 8 months. But only Rs.3,000/- was awarded towards bystander expenses. 18. The accident occurred in the year 2006 and it has come out that as per the Medical Board certificate the total neurological disability is 80% and whole body disability is already taken as 100%. The victim boy also died due to the injures sustained out of the accident after about 9 years and 8 months. So there should have a bystander through out day and night to look after the child. Hence an amount of Rs.6,000/can be taken reasonably towards bystander expenses per month. So appellants are entitled to get compensation for 9 years and 8 months towards bystander expenses at the rate of MACA No.832/2011 10 Rs.6,000/- per month and that amount will come to Rs.6,96,000/- [6,48,000+48,000]; (for 9 years: 6,000x12x9 = Rs.6,48,000), (for 8 months: 6,000x8 = Rs.48,000]. Deducting the amount already awarded, the balance would be Rs.6,93,000/- [6,96,000-3,000]. 19. Next aspect is with regard to the compensation towards pain and suffering. In this case it is not in dispute that the death of the deceased boy was due to the injury sustained out of the accident. So the appellants are entitled to get compensation towards pain and suffering undergone by the victim boy after the accident. It has come out in evidence that the boy was bedridden for 9 years and 8 months. So an amount of Rs.1,50,000/- is awarded towards pain and suffering. Deducting the amount of Rs.15,000/- already awarded, the appellants are entitled to get Rs.1,35,000/[1,50,000-15,000] towards pain and suffering. 20. In the result, the appellants are allowed to realise enhanced compensation of Rs.8,73,000/- [45,000+6,93,000+ 1,35,000] (Rupees eight lakhs seventy three thousand only), MACA No.832/2011 11 which will carry interest at the rate of 6% per annum from the date of petition till realisation. The third respondent-insurer is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability towards balance Court Fee. 21. The disbursement of enhanced compensation shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. 22. Parties shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** **shg** **JUDGE**