Aswin Sai (minor) through Kavitha v. IFFCO Tokio General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 MACA NO. 2698 OF 2014** **AGAINST THE AWARD DATED 04.11.2013 IN OPMV 1081/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** ASWIN SAI AGED 8 YEARS (MINOR) S/O.UMESAN, REP. BY HIS MOTHER KAVITHA,RESIDING AT MANKUZHI HOUSE, VADAKKANTHARA,PALAKKAD. BY ADV SRI.JACOB SEBASTIAN ## **RESPONDENT/RESPONDENT NO.2:** IFFCO TOKIO GENERAL INSURANCE CO. LTD ITGI STRATEGIC BUSINESS UNIT TULSI CHAMBERS,3RD FLOOR, 195 TV SWAMI ROAD WEST RS PURAM,COIMBATORE, PIN - 641 002. BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON 07.03.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.2698/2014 2 **M.R.ANITHA, J** ****************** M.A.C.A.No.2698 of 2014 -----------------------------------------------------Dated this the 7[th] day of March, 2022 ## **JUDGMENT** This appeal has been filed against the award passed in O.P.(MV) No.1081/2010 on the file of Motor Accident Claims Tribunal, Palakkad. Claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short 'the Act') for the injuries sustained by the claimant in a motor accident occurred on 13.03.2009 at about 3.15 p.m, while he was sitting on the edge of the road at Karikode, Mannam, a motorcycle bearing Registration No.KL-09 V 9885 hit him resulting in grievous injuries to him. A total compensation of Rs.1,50,000/- was claimed. It is alleged that accident occurred due to the rash and negligent riding of the motorcycle by the first respondent. M.A.C.A.No.2698/2014 3 2. Before the Tribunal, first respondent remained ex parte. The second respondent insurer did not deny the insurance coverage with respect to the offending vehicle. It is contended that there is a delay of nearly two weeks in reporting the accident to the police. The claimant was put to proof of the allegation regarding rashness and negligence on the part of the respondent, the injuries sustained and the amounts claimed. 3. Exts.A1 to A9 were marked and PW1 examined on the side of the appellant/claimant (hereinafter be referred to as 'the claimant'). There is no defence evidence. 4. The Tribunal on appreciating the evidence and the facts and circumstances found that the accident occurred due to the rash and negligent riding of the motorcycle by the first respondent. A total compensation of Rs.82,140/- was awarded. The second respondent the insurer was held liable as per the contract of insurance to indemnify the insured. 5. Dissatisfied with the quantum of compensation awarded, the claimant approached this Court in appeal on various grounds stated in the memorandum of appeal. M.A.C.A.No.2698/2014 4 6. Learned Standing Counsel Sri.Mathew Jacob appeared on behalf of the second respondent/insurer. Lower court records were called for and both sides were heard. 7. According to the learned counsel for the appellant/claimant, the compensation awarded by the Tribunal under various heads are very low. According to him, Ext.A9 disability certificate and evidence of PW1 Doctor would prove disability of 12%. Tribunal did not award any compensation under the head of permanent disability. No amount was also awarded under the ground of deformity just above the left ankle. A just compensation was not awarded to the minor victim who had suffered 12% permanent disability. The learned counsel also relies on **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Another : Civil Appeal No.7139 of 2013** arising out of S.L.P.(Civil) No.1676 of 2012 dated 26.08.2013. 8. On the other hand, learned Standing Counsel vehemently opposed in adopting 12% permanet disability fixed in Ext.A9 and he would contend that the victim was a minor boy M.A.C.A.No.2698/2014 5 and the disability is assessed by PW1, who is not the doctor who treated the patient. Disability assessed is on higher side and is also not certified as whole body and hence 12% disability certified cannot be acted upon. He also requested to refer the claimant to Medical Board for determination of actual disability. He would also contend that the Tribunal rightly observed that there is every chance that the implant will be removed in future and the disability may vary as the petitioner grows up and hence the Tribunal found that it cannot be considered that there would be a permanent loss of earning power to the claimant and hence no amount was awarded under the head of permanent disability. So, no interference is called for in that regard. 9. At the time of argument, even though the learned counsel for the insurer pressed for refering the claimant to the Medical Board for assessing the actual disability, the learned counsel for the claimant was not prepared to refer the claimant to Medical Board for assessment of disability. According to him, the doctor, who issued Ext.A9 disability certificate has been examined as PW1 and nothing could be brought out to discredit M.A.C.A.No.2698/2014 6 his testimony and hence there is no reason whatsoever for discarding the disability certificate and evidence of PW1 the doctor. 10. In **Raj Kumar v. Ajay Kumar and Another : 2011(1) SCC 343 : 2010 KHC 5021 : 2011(1) KLT 620** , a two Judge Bench of the Apex Court dealt with in detail regarding the general principles relating to compensation in injury cases. In paragraph 7 of the said judgment, the percentage of permanent disability and assessment of compensation thereof has been discussed which reads as follows: _“7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole_ M.A.C.A.No.2698/2014 7 _body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.”_ 11. In paragraph No.9 it has been discussed that the Tribunal has to first decide whether there is any permanent disability and if so the extent of said permanent disability. The Tribunal has to consider and decide with reference to evidence (i) whether the disablement is permanent or temporary (ii) if the disablement is permanent whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. 12. In paragraph No.12 it has been discussed that the Tribunal should act with caution if it proposed to accept the M.A.C.A.No.2698/2014 8 expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. It is also discussed that there are several instances of unscrupulous doctors who without treating the injured readily giving liberal disability certificates to help the claimants. It is further held that if the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. It is also held that if the Tribunal is not satisfied with the medical evidence produced by the claimant, it can consitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals / Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 13. In this case, though the Tribunal did not make any effort to refer the claimant to the Medical Board inspite of the fact that it was not convinced about the genuineness of the disability certificate, while the matter came up before this Court for hearing the learned Standing Counsel pressed for referring the claimant to the Medical Board for assessing the disability. M.A.C.A.No.2698/2014 9 But the counsel for the claimant did not give any affirmative reply to the same. Hence the disability could not be assessed through Medical Board. 14. Ext.A9 disability certificate in this case is not by the doctor who treated the claimant boy. In Ext.A9 disability certificate, the doctor has not certified that 12% disability is whole body but only at the time of evidence he deposed that 12% disability certified is whole body. The claimant in this case sustained an open wound over the right fibular region, deformity over the left middle one-third tibia and displaced fracture of left tibia (completely displaced and rotated) and contaminated wound right fibula exposing the bone and he was hospitalised only for twelve days. Ext.A8 series medical bills to the tune of Rs.36,690/- have been produced. The reason for the Tribunal in not accepting 12% disability is the implant in situ and there is every chance of the implant being removed and disability may vary as the petitioner grew up. Hence it cannot be considered as a permanent loss of earning power. Since the implant was not removed and the victim was a minor boy aged eight years and M.A.C.A.No.2698/2014 10 the injuries sustained is displaced fracture of left tibia (completely displaced and rotated) and contaminated wound right fibula exposing the bone and the in-patient treatment was only for 12 days, it is really doubtful whether 12% disability assessed in Ext.A9 is whole body disability. That is more so because it is not so certified in Ext.A9 certificate and only during evidence PW1 deposed that it was permanent whole body disability. 15. The learned counsel for the claimants relied on **Master Mallikarjun** 's case to support his contentions that in cases of child victim suffering above 10% to 30% disability is entitled for Rs.3,00,000/-. In that case, Rs.3,00,000/- was awarded since the claimant was having permanent disability of 18%. So also, on going through the facts it has come out in evidence that the patient walks with limp on to the right side, puckered scar on and aspect of middle 1/3 of (Right) leg with operated scar on either side, shortening of right lower limb by 1.5 cms, limitation of right knee movements by 30%, muscle power around right knee Gr.IV against Gr.V, limitation of right ankle M.A.C.A.No.2698/2014 11 movement by 20%, muscle power around (right) ankle is Gr.IV against Gr.V, check X-ray shows disunited fracture of right tibia with plate and screw fixation in situ, malunion fracture of right tibia and the Surgeon assessed disability to the extent of 34% over the right lower limb and 18% to the whole body. The victim boy was treated as in-patient for 58 days in that case. So, taking all those factors into account, the Apex Court granted Rs.3,00,000/- towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, discomforts and loss of amenities in life on account of permanent disability. 16. Learned counsel also relied on **Kumari Kiran Thr. Her Father Harinarayan v. Sajjan Singh and Others : 2015(1) SCC 539 : 2014 ACJ 2550 : 2014 KHC 4593** . That was a case in which two minor children and father, who was riding the motorcycle, sustained injuries on collision with another vehicle. The minor claimants were 10 and 15 years old and they sustained permanent disability to the extent of 30% and 20% respectively. On going through the facts of the case, it has been M.A.C.A.No.2698/2014 12 specifically found in paragraph No.12 that both the minor claimants Kumari Kiran and Master Sachin have suffered permanent disability at 30% and 20% respectively due to the shortening of the right leg by one inch after the injury sustained in the motor accident. It is also very pertinent to note that in **Master Mallikarjun** 's case as well as in **Kumari Kiran** 's case, there was no dispute with regard to the percentage of disability assessed with respect to the claimants. The learned counsel for the claimants herein would also contend that in those cases also, the disability certificates are not that of the Medical Board. But the fact remains that in those cases, there was no dispute with regard to the percentage of disability covered by the disability certificates. So, the decision in **Master Mallikarjun** as well as in **Kumari Kiran** cannot be made squarely applicable in the case in hand. But, taking into account the fact that the claimant sustained open wound over the right fibular region, deformity over the left middle one-third tibia and displaced fracture of left tibia (completely displaced and rotated) and contaminated wound right fibula exposing the bone and he was hospitalised for twelve M.A.C.A.No.2698/2014 13 days and further that PW1, the doctor who issued Ext.A9 certificate certified 12% permanent disability without any specific mention that it is whole body disability and only when he was examined before court he deposed that the disability is whole body and the implant was in situ while assessing 12% disability, I am of the considered view that permanent whole body disability can very well be fixed as 6%. So, as per the principles laid down in **Master Mallikarjun** towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, discomforts and loss of amenities in life on account of permanent disability, claimant is entitled to get Rs.1,00,000/-. From that, the amount already awarded by the Tribunal is to be deducted. That is, Rs.17,500 (pain and suffering) + Rs.25,000 (loss of amenities and convenience) = Rs.42,500/-. Then the balance amount would be Rs.57,500/-. 17. In **Master Mallikarjun** as well as in **Kumari Kiran** , the Apex Court further awarded Rs.25,000/- towards discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation. The accident in **Master Mallikarjun** 's M.A.C.A.No.2698/2014 14 case was on 05.06.2006 and in **Kumari Kiran** 's case was on 04.06.2009. In this case, the accident occurred on 13.03.2009. So, Rs.25,000/- can be awarded towards the agony to parents. An amount of Rs.10,000/- each was awarded in **Kumari Kiran** 's case towards special diet and nutrition to the minor claimants. In this case also, an amount of Rs.7,000/- can be awarded towards extra nourishment. The Tribunal has not awarded any amount under those heads to the claimant. 18. It has come out in evidence that the implant in situ. So removal of implant and other expenses towards future treatment, an amount of Rs.25,000/- can further be awarded. So, in total, claimant is entitled to enhanced compensation of Rs.1,14,500/- [Rs.57,500 + Rs.25,000 + Rs.7,000 + Rs.25,000). 19. In the result, claimant is allowed to realize enhanced compensation of **Rs.1,14,500/-** in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. The respondent is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of M.A.C.A.No.2698/2014 15 certified copy of this judgment after deducting the liability of the appellant/claimant towards balance court fee. 20. The disbursement of enhanced compensation to appellant 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. Appellant/claimant shall provide his 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 a certified copy of this judgment. ## (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy PS to Judge