Aswin Ghosh @ Achu (Minor) and Mini Mohan Babu, represented by Guardian, Appellants; Binu, R. Maheshkumar, Shamnad and Oriental Insurance Co. Ltd., Respondents

_M.A.C.A.No.26/2013_ _1_ _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942_ _MACA.No.26 OF 2013_ _AGAINST THE AWARD IN OPMV 1656/2004 OF ADDITIONAL DISTRICT COURT-II & MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA_ ## _APPELLANT/S:_ _1 ASWIN GHOSH @ ACHU (MINOR), KAVINTE KIZHAKKATHIL (KRIPALAYAM), GOVINDAMUTTOM MURI, GOVINDAMUTTOM P.O., PUTHUPALLY, KAYAMKULAM. 2 MINI MOHAN BABU, W/O.MOHAN BABU, KAVINTE KIZHAKKATHIL (KRIPALAYAM), GOVINDAMUTTOM MURI, GOVINDAMUTTOM P.O., PUTHUPPALLY, KAYAMKULAM, (MOTHER GUARDIAN AND NEXT FRIEND OF 1ST APPELLANT, REPRESENTING THE 1ST APPELLANT) BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN_ ## _RESPONDENT/S:_ _1 BINU, MUZHANGODIYIL VEEDU, PUTHUPPALLY VADAKKU KOCHU MURI, DEVIKULANGARA-690 527. 2 R.MAHESHKUMAR, KAVARATHU KIZHAKKATHIL, PALACE WARD, KRISHNAPURAM,_ _M.A.C.A.No.26/2013_ _2_ ## _KAYAMKULAM-690 533._ _3 SHAMNAD, KANNAKATHUPUTHENVEEDUPALACKAL, THEVALAKKARA, KOLLAM-690 524. (THE 3RD RESPONDENT IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 22.09.2017 IN I.A.NO.2823/17 IN MACA.NO.26/13)_ _4 THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, KAYAMKULAM-690 502._ _R1 BY ADV. SRI.R.AJITH KUMAR 12884 R4 BY ADV. SRI.R.AJITH KUMAR (128/84)_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _M.A.C.A.No.26/2013_ _3_ ## **JUDGMENT** ## **Dated this the 9[th] day of March, 2021** The petitioners in O.P.(MV).No.1656 of 2004 on the file of the Motor Accidents Claims Tribunal, Mavelikkara are the appellants herein. The claim petition was filed by them seeking compensation for the injuries sustained to the 1[st] appellant, who was a minor aged 4 years, in a motor accident occurred on 14.10.2003. The accident occurred while the scooter on which the 1[st] appellant was pillion riding, was hit by a goods autorikshaw, insured with the 4[th] respondent herein. The total compensation claimed by them is Rs.69,000/-, which was limited to Rs.60,000/-. 2. The insurance company appeared and filed a written statement, admitting the coverage of policy; but disputed the liability on various grounds. The quantum of compensation was also seriously disputed. 3. The aforesaid case was tried along with O.P. (MV).No.1655 of 2004, which was filed by the father of the 1[st] appellant herein, seeking compensation for the injuries sustained to him in the very same accident. The evidence in _M.A.C.A.No.26/2013_ _4_ this case consists of oral evidence of PW1 and documentary evidence of Ext.A1 to A18. No evidence was adduced from the side of the respondents. After the trial, the Tribunal was pleased to pass an award allowing compensation of Rs.1,73,500/-. Since it was found that the accident occurred due to the negligence of the goods autorikshaw, being the insurer of the said vehicle, the 4[th] respondent was directed to deposit the said amount along with interest at the rate of 7.5% interest per annum from the date of petition till realization. 4. Being dissatisfied with the quantum of compensation as above, this appeal is filed. 5. Heard the learned counsel for the appellant and also the learned counsel for the 4[th] respondent. 6. The learned counsel for the appellant relied upon the judgment rendered by the Hon’ble Supreme Court in **Master Mallikarjun v. Divisional Manager, National Insurance Co.Ltd. & Anr. [(2014) 4 SCC 396],** wherein certain guidelines have been issued by the Hon’ble Supreme Court in the matter of computation of compensation to the children who sustained physical disabilities due to the _M.A.C.A.No.26/2013_ _5_ ## injuries sustained in a motor accident. In paragraph No.12 of the judgment, it is mentioned as follows: “12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: - **HEAD COMPENSATIO N AMOUNT** Pain and suffering already Rs.3,00,000/undergone and to be suffered in future, mental and physical shock, hardship,inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability. _M.A.C.A.No.26/2013_ _6_ ||| |---|---| |Discomfort, inconvenience and loss<br>of earnings to the parents during<br>the period of hospitalization.|Rs.25,000/-| |Medical and incidental expenses<br>during the period of hospitalization<br>for 58 years|Rs.25,000/-| |Future medical expenses for<br>correction of the mal union of<br>fracture and incidental expenses<br>for such treatment.|Rs.25,000/-| |**TOTAL**|**Rs.3,75,000/-**| percentage of disability suffered by the 1[st] appellant is certified as 15% by the Medical Board, Alappuzha. Going by the principles laid down by the Hon’ble Supreme Court in the above judgment, if the disability is above 10% and upto 30% of the whole body, the compensation to be granted is Rs.3,00,000/-. In this case, the amount of compensation awarded by the Tribunal is Rs.1,73,500/- only. Therefore, the appellant shall be entitled for a further sum of Rs.1,26,500/as compensation. 8. The learned counsel for the appellant further contended that, the appellant is also entitled for further amount under the head of discomfort, inconvenience and loss of earning to the parents during the period of hospitalization and also future medical expenses. Learned counsel for the appellant relies upon the grounds mentioned in paragraph _M.A.C.A.No.26/2013_ _7_ No.12 of **Master Mallikarjun’s case** in support of the said contention. It is contended by him that, as per the medical records in this case, periodical review has been insisted by the doctors for the child. Thus, such periodical review results in discomfort, inconvenience and loss of earning to the parents and therefore, they are entitled to Rs.25,000/- as award in view of **Mallikarjun’s case** . 9. It is also contended by him that, since periodical medical reviews, results in additional expenses, he is also entitled for Rs.25,000/- as mentioned in paragraph No.12 of **Mallikarjun’s case** . It is seen that the accident occurred on 14.10.2003 and the award was passed in the year 2012. Further, the appeal is filed in the year 2013 and even now the appellants did not produce any documents showing the details of further treatment availed by the 1[st] appellant and also the details of the periodical review conducted. This Court is of the opinion that in the absence of any such documents, no further amount can be awarded under the said heads, since the consolidated amounts mentioned in **Mallikarjun’s case** takes care almost all the heads of compensation receivable by the victim. Therefore, if the _M.A.C.A.No.26/2013_ _8_ appellant wants to claim any additional amounts, necessarily he will have to adduce further evidence for the same. On going through the materials available on record, this Court is of the view that such materials are lacking in this case and therefore, no further amount can be awarded under the above heads, as claimed by the appellants. 10. In the above circumstances, the appeal is allowed in part, by re-fixing the total compensation entitled by the 1[st] appellant as Rs.3,00,000/- as against Rs.1,73,500/- awarded by the Tribunal. Thus the 4[th] respondent is directed to deposit an amount of Rs.1,26,500/- along with interest at the rate of 7.5% per annum from the date of petition till realization, within three months from the date of receipt of a copy of this judgment. All the other other directions issued by the Tribunal are hereby confirmed. The appeal is disposed of to the above extent. Sd/- ## **ZIYAD RAHMAN A.A.** ## **JUDGE** DG