Ayisha Shaguftha d/o Aboobacker Sahir v. The Oriental Insurance Company Ltd

## **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 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938** **MACA.No. 3499 of 2016 () -------------------------** **AGAINST THE AWARD IN OPMV 1064/2011 of M.A.C.T., THALASSERY DATED 06-01-2016** **APPELLANT/PETITIONER** **------------** **AYISHA SHAGUFTHA D/O ABOOBACKER SAHIR, AGED 21 YEARS RESIDING AT SHAMEEGAR, P.O. CHIRAKKARA KANNUR DISTRICT** **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENT/RESPONDENT NO.3:** **--------------** **THE ORIENTAL INSURANCE COMPANY LTD DO NO.2, K.P.K.RIALTO, P.O.THANA KANNUR PIN 670 001** **BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.3499 OF 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of December, 2016 ## **JUDGMENT** ## Ravikumar, J. The injured petitioner in O.P.(MV)No.1064/2011 on the file of the Motor Accidents Claims Tribunal, Thalassery is the appellant herein. The said claim petition was filed under Section 166 of the Motor Vehicles Act through her next friend who is none other than her mother, seeking a total compensation of Rs.25 lakhs as compensation for the injuries sustained by her in a motor vehicle accident on 17.02.2011 at about 1.30 p.m.. While the appellant was walking alongside of Edakkad public road, she was knocked down by a bus bearing Reg.No.KL 13 U/3733 driven by the second respondent. Serious injuries sustained by the appellant in the accident resulted in permanent disability. She had to remain as an inpatient for a period of 77 days. It is in the said circumstances that the said claim petition was filed. The Tribunal as per the impugned award granted a total MACA No.3499/2016 2 compensation of Rs.3,20,300/- with interest @ 9% per annum from the date of petition till realization. The appellant seeks for enhancement of the compensation. 2. Evidently, there is no dispute regarding the accident, cause of accident as well as the liability of the respondent insurance company to indemnify the insured owner. Therefore, the sole question to be decided in this appeal is whether or not the appellant is entitled to get enhanced compensation. The learned counsel appearing for the appellant contended that at the time of the accident, the appellant was aged only 16 years. Evidently, the teenager had to sustain serious injuries which resulted in disfigurement besides permanent disability. Going by Ext.C1, the permanent disability was assessed as 7%. The medical records would reveal the extensive disfigurement occurred. The learned counsel in the said circumstances submitted that taking note of the aftermath of the injuries sustained and the adverse impact which it might cause in her future life, the compensation cannot be said to be a just compensation. 3. Per contra, the learned counsel appearing for the respondent MACA No.3499/2016 3 Insurance Company submitted that the compensation granted by the Tribunal cannot be said to be inadequate and in fact it is just compensation. It is submitted that the Tribunal has rightly applied the dictum laid down by the Apex Court in **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and another ( AIR 2014 SC 736)** . The contention is that since the extent of permanent disability is only 7%, the appellant is entitled to get only Rs.1,00,000/- as compensation for permanent disability in addition to the pecuniary loss. The learned counsel submitted that in such circumstances compensation payable towards monetary loss were also granted to the appellant in addition to the amount payable in terms of **Master Mallikarjun's** case. In short it is submitted that in such circumstances, no appellate interference is called for. 4. True that on strict application of the ratio of the decision in **Master Mallikarjun's** a child who sustained injuries resulting in permanent disability only to the extent of 7%, he is entitled to get only Rs.1,00,000/- in addition to the monetary loss. But at the same time, a MACA No.3499/2016 4 careful scanning of the decision would reveal that under normal circumstances the dictum laid down in **Master Mallikarjun's** case has to be applied in cases where compensation is claimed for the injuries resulting in permanent disability to minors and the quantum of compensation payable depends upon the extent of permanent disability, as has been laid down by the Apex Court thereunder. But at the same time, it is evident that in exceptional circumstances a deviation from the dictum laid down in **Master Mallikarjun's** case is permissible and the said position has been explicitly made clear by the Hon'ble Apex Court in **Master Mallikarjun's** case itself. Therefore, the question to be decided in this case is whether it is a fit case where deviation from case the dictum laid down by the Apex Court in **Master Mallikarjun's** is required for the purpose of granting just compensation taking note of the injuries susatined and its impact. 5. Evidently, at the time of the accident, the appellant who is a female child was aged only 16 years. She sustained the following injuries : MACA No.3499/2016 5 “Deep abrasion of left ankle, left foot and left toes, grievous injury to ankle joint and intermetatarsal joints, fracture on left fibula and extensive skin loss on left thigh.” 6. PW2, the Doctor who conducted plastic surgery was examined before the Tribunal. His oral testimony would reveal that the petitioner requires thinning of flap on either sides in two stages and minimal contractive of toes should be released with skin grafting. He also deposed that even after such procedure, the patient might feel pain, itching, swelling etc. The operation procedures followed would reveal that wound debridment was done and repairs of peroneous longus was also done. Peroneous longus is one of the three muscles of the leg that act to move the foot. In fact it is the muscle arising from the lateral tibial condyle and the upper two thirds of the fibula and inserting on the lateral aspect of the first metatarsal and the associated portion of the first cuneiform. The peroneus longus is the primary contributer to the plantar flexion of the foot and the eversion of the ankle. The medical records would reveal that there is a deep dark scar on the toes and there MACA No.3499/2016 6 is extensive skin loss on left thigh. As noticed hereinbefore, the injured who is a female was only aged 16 years at the time of the accident. Taking into account the nature of the injuries and the adverse impact, evidently the Tribunal also considered it as a fit case where appellant has to be compensated for loss of marital prospects and disfiguration. The learned counsel for the appellant contended that though the Tribunal has taken note of the testimony of PW2 to the effect that cost of the procedures to be entertained would be Rs.96,000/-, no amount whatsoever has been granted by the Tribunal towards future medical treatment. It is the further submission that the Tribunal has granted compensation of only a lumpsum amount of Rs.1,00,000/- after clubbing the three heads namely pain and suffering, disability and loss of amenities. In short, it is the contention that what is granted by the Tribunal as per the impugned judgment and award cannot be said to be a just compensation commensurate with the injuries and their aftermath. 7. True that in this case the appellant sustained only injuries. But, taking into account the impact of the serious injuries sustained by MACA No.3499/2016 7 her and also taking note of the fact that it would certainly have adverse impact on her marriage prospects. Taking note of the fact that the nature of the injuries mentioned hereinbefore and the particular parts in which they were sustained and also the fact she was then virtually crossed 16 years, we are of the view that a deviation from the dictum laid down in Mater Mallikarjun's case is required, to grant just compensation to the appellant. 8. Appellant was a non-earning person at the time of the accident. She was aged only 16 years at the time of the accident and she was a student. In **Lata Wadhwa and others v. State of Bihar and others ( AIR 2001 SC 3218),** the Hon'ble Apex Court held that contribution of deceased child could be taken as Rs.24,000/- per annum. In **Kishan Gopal and another v. Lala and others (** 2014 (1) SCC 244), even after referring to **Lata Wadhwa's** case, in the case of a deceased child while considering the compensation payable for the death, the Hon'ble Apex Court took the notional income as Rs.30,000/-. It is to be noted that the income was so fixed notionally by the Apex MACA No.3499/2016 8 Court in respect of a child who was aged only 10 years at the time of death. 9. Taking into account all such factors, especially the age of the appellant at the time of the accident, we are inclined to take Rs.30,000/- as the annual income notionally for calculation purpose. Going by the schedule given in the decision of the Apex Court in **Sarla** ## **Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC)** , the multiplier applicable with reference to the age of the appellant at the time of the accident is 18. There is no dispute regarding the disability incurred by the appellant owing to the serious injuries sustained in the accident. Going by Ext.C1, it was assessed as 8%. Taking into account such relevant factors, if the amount payable under the head permanent disability is assessed, the appellant would be entitled to get a compensation of Rs.37,800/- ( 30,000 x 18 x 7%). 10. As noticed hereinbefore, the Tribunal has granted an amount of Rs.1,00,000/- under the clubbed heads viz., pain and suffering, disability and loss of amenities. Since we have now assessed the compensation for disability separately, the amount granted by the MACA No.3499/2016 9 Tribunal viz., Rs.1,00,000/- can be adjusted as compensation under the heads of 'pain and suffering' and 'loss of amenities'. We have already taken note of the fact that the Doctor who conducted plastic surgery on the appellant was examined as PW2. He deposed to the effect that the expenses for future treatment explained by him would cost an amount of Rs.96,000/-. Having gone through the evidence of PW2 and taking note of the nature of the injuries and the suggested procedures, we have no hesitation to hold that they are essential procedures to be followed atleast to restore the original position to certain extent. In such circumstances, we are inclined to grant Rs.96,000/- towards future medical expenses. In the light of the discussion as above, the appellant would be entitled to get a total additional compensation of Rs.1,33,800/-. Since an amount of Rs.96,000/- is granted towards future medical expenses, the appellant would not be entitled to get interest for the said amount. At the same time, the appellant would be entitled to get interest @ 8% per annum from the date of petition till realization on Rs.37,800/-. The respondent shall deposit the amount payable in terms of this judgment MACA No.3499/2016 10 along with interest thereon as mentioned above within a period of two months from the date of receipt of a copy of this judgment. In the circumstances, there will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv.