BASIL JOHNY S/O.JOHNY SEBATIAN v. KUNJUKUNJU M.P. and KRISHNANKUTTY S/O.NARAYANAN and THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY 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. 2472 OF 2013** **AGAINST THE AWARD DATED 13.09.2012 IN OPMV 1605/2009 ON THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** BASIL JOHNY S/O.JOHNY SEBATIAN, AGED 12 YEARS(MINOR, DATE OF BIRTH 15/4/2000), CHALIKKOTTAYIL HOUSE, MELAMPARA P.O., THALAPPALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM, REPRESENTED BY MOTHER SHEELA JOHNY, W/O.JOHNY SEBASTIAN, AGED 39, CHALIKKOTTAYIL HOUSE, MELAMPARA P.O., THALAPPALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM-686 594. BY ADV SRI.SAJI.P.JOSEPH ## **RESPONDENTS/RESPONDENTS:** 1 KUNJUKUNJU M.P., S/O.PAILY, AGED 43 YEARS, MADATHEKADU HOLUSE, PAZHOOR KARA, MONIPPALLY P.O., PIN-686 664. 2 KRISHNANKUTTY S/O.NARAYANAN, PULIMADAM HOUSE, RAMAMANGALAM P.O., MUVATTUPUZHA, ERNAKULAM-688 663. 3 THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LTD,BRANCH OFFICE, MADAPARAMBIL CHAMBERS, M.C.ROAD, MUVATTUPUZHA. BY ADV RAJI T.BHASKAR SMT RAJI T. BHASKAR-R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2472 of 2013 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P.(MV) No.1605/2009 on the file of Motor Accidents Claims Tribunal, Ernakulam (in short 'Tribunal'). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant/claimant, a nine year old boy in a motor accident. 2. It is alleged that on 30.4.2009 at about 8.15 p.m., near Peppathy Junction, while the appellant/claimant was walking the side of the road, scooter bearing Reg.No.KL-7B 9309 hit the appellant/claimant resulting in serious injuries to him. It is alleged that the accident happened due to the rash and negligent driving of the scooter by the 1[st] respondent. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. Total compensation of Rs.7,56,000/- has been claimed and it is limited to Rs.4,50,000/-. 3. Respondent Nos.1 and 2 remained ex-parte before the Tribunal. 3[rd] respondent/insurer filed written statement admitting MACA.No.2472 of 2013 3 the policy coverage with respect to the offending vehicle. It is also contended that the accident happened due to the negligence of the appellant/claimant (herein after be referred as claimant). 4. Exhibits A1 to A10 series were marked and PW1 examined from the side of the claimant. Tribunal on evaluating the evidence and materials and the facts and circumstances came to a conclusion that the accident happened due to the rash and negligent riding of the scooter by the 1[st] respondent. Compensation of Rs.1,45,000/- in total was awarded. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 6. Notice was duly served to 1[st] respondent. There was no appearance for the 1[st] respondent. Notice to 2[nd] respondent was dispensed with at the risk of the appellant. 3[rd] respondent appeared through Standing Counsel Adv.Raji.T.Bhaskar. Lower court records were called for and perused. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the 3[rd] respondent/insurer. MACA.No.2472 of 2013 4 7. According to the learned counsel for the claimant, due to the accident, the claimant sustained grievous injuries. The Medical Board certifies 17% permanent disability. But the Tribunal found that percentage of disability in Exhibit C1 is not whole body disability. That is illegal. No compensation was awarded for future treatment. He would also contend that the compensation awarded towards bystander expenses and extra nourishment are very low. Hence, the learned counsel seeks for enhancement of compensation under those heads also. 8. The learned Standing Counsel for the insurer on the other hand would contend that just and reasonable compensation has already been awarded by the Tribunal. Hence, no enhancement is required at the instance of this Court. 9. Accident, injury sustained and liability of 3[rd] respondent is not in dispute. The challenge is only with regard to the quantum of compensation awarded under various heads. 10. The claimant in this case sustained following injuries: 1. Bleeding from the right ear 2. Contusion with hematoma of (RT) tempero parietal region 3. Rt.Temporal crack fractures 4. (Rt) temporal fracture hematoma (thin) mild cerebral oedema MACA.No.2472 of 2013 5 11. Medical bills of Rs.39,800/- has been produced. The discharge summary Exhibit A6 would prove that he had undergone inpatient treatment for 16 days ie. from 30.4.2009 to 16.5.2009. Exhibit A7 issued by consultant ENT Surgeon, Medical Trust Hospital, states that audiogram showed that the petitioner suffered 100 db hearing loss on the right side due to the injuries suffered in RTA. As per Exhibit C1 Medical Board certified permanent hearing disability at 17%. Hence, Tribunal was of the view that permanent physical disability suffered by the claimant is mild. But at the same time it has been found that physical disability suffered by the claimant will affect his earning capacity and Tribunal awarded Rs.30,000/- towards permanent disability and Rs.20,000/- towards loss of earning capacity. 12. Hearing loss at 17% certified by the Medical Board will affect the earning capacity of the claimant in future to a great extent depending upon the avocation he would choose in future which one cannot predict at this time. So taking into account the nature of injuries and period of inpatient treatment undergone by him, permanent partial disability of 17% certified by the Medical MACA.No.2472 of 2013 6 Board can be taken as 12% whole body disability. 13. In the present case, the claimant is a minor boy aged 9 years. So, in this context it is relevant to quote **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited & Another : 2013 ACJ 2445** a two Judge Bench of the Apex Court decided the compensation to be awarded in the case of minor aged 5 years. In para No.8 Apex Court quoted **R.D.Hattangadi v. Pest Control (India) Pvt.Ltd. : 1995 (1) SCC 511** wherein while assessing non-pecuniary damages, for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports and damages on account of inconvenience, hardship, discomfort, disappointment, frustration etc. have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. So, while considering the claim of victim child, it would be unfair and improper to follow the structured formula in the Second Schedule of the Motor Vehicles Act. The main stress in the formula is on technical damages. For children there is no income. The only indication in the Second Schedule for MACA.No.2472 of 2013 7 non-earning person is to take the notional income as Rs.15,000/per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked under non-pecuniary heads in addition to the actual amount incurred for treatment and or to be done, transportation, assistance of attendant etc. The main element of damages in the case of child victims are pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. Apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation etc. 14. The Apex Court further quoted **Sapna v. United India Insurance Co.Ltd., 2008 (7) SCC 613** , wherein in the case of a 12 year old girl who suffered 90% disability in her left limb, the court granted lump sum amount of Rs.2,00,000/- on these heads. In **Irana v. Mohammadali Khadarsab Mulla and Another 2004 ACJ 1396** , a Division Bench of Karnataka High Court granted an MACA.No.2472 of 2013 8 amount of Rs.4,00,000/- on these heads to the child who suffered 80% permanent disability. In **Kum.Michael v. Regional Manager, Oriental Insurance Company Limited and Another JT 2013** **(3) SC 311,** the Apex Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these heads. 15. Further in Para No.12, it has been discussed that though it is difficult to have an accurate assessment of the compensation in 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, 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.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take different yardstick. In this case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing inconvenience and MACA.No.2472 of 2013 9 loss of earning to the parents. 16. Hence, the appellant was awarded Rs.3 lakhs under the head of pain and suffering already 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. 17. In the present case, since permanent whole body disability is found at 12%, claimant can be awarded Rs.3,00,000/under the head of pain and suffering already undergone, to be suffered in future, mental, physical shock, hardship, inconvenience, discomfort etc. So, claimant is not further entitled to get separate compensation for pain and suffering, continuing permanent disability or loss of earning partial as well as compensation for loss of amenities and enjoyment of life. So the amount of Rs.25,000 + 30,000 + 20,000+20,000 awarded by the Tribunal under those heads has to be deducted, it will come to Rs.95,000/- in total. Deducting the amount already awarded, balance would be Rs.2,05,000/- (Rs.3,00,000-95,000). 18. Towards bystander expense Tribunal awarded Rs.3,000/-. The claimant has undergone inpatient treatment for 16 MACA.No.2472 of 2013 10 days, the accident was in the year 2009. So Rs.250/- per day can be taken towards bystander expenses. Under the head of **bystander expenses** the claimant is entitled to get Rs.250x16=Rs.4,000/-. Deducting the amount already awarded the balance would be Rs.1,000/- (Rs.4,000-3,000). Towards extra nourishment Tribunal awarded Rs.2,000/-. The claimant being a minor boy aged 9 years. Rs.5,000/- towards extra nourishment can be awarded. Deducting the amount already awarded the balance would be Rs.3,000/- (Rs.5,000-2,000). Hence, the claimant is entitled for the enhanced compensation of Rs.2,09,000/(Rs.2,05,000+3,000+1,000). 19. For easy reference compensation awarded is tabulated as follows: **==> picture [435 x 198] intentionally omitted <==** **----- Start of picture text -----**<br> Amounts modified<br>Compensation allowed Amount Amount and recalculated<br>at different heads claimed(Rs.) awarded by this Court (in<br>Rs. rupees)<br>Loss of attendance in<br>10,000 0 0<br>the school<br>Medical expenses 60,000 43,000<br>1,500<br>Transport expenses 5,000<br>**----- End of picture text -----**<br> MACA.No.2472 of 2013 11 **==> picture [435 x 473] intentionally omitted <==** **----- Start of picture text -----**<br> Amounts modified<br>Compensation allowed Amount Amount and recalculated<br>at different heads claimed(Rs.) awarded by this Court (in<br>Rs. rupees)<br>Extra nourishment 5,000 2,000 3,000<br>Damage to clothes and 1,000 500<br>articles<br>Bystander's expenses 5,000 3,000 1,000<br>Compensation for pain 50,000 25,000<br>and suffering<br>Compensation for 2,00,000 30,000 2,05,000<br>continuing and<br>permanent disability<br>Compensation for loss 2,00,000 20,000<br>of hearing power<br>Compensation for loss 2,00,000 20,000<br>of amenities and<br>enjoyment in life<br>Total 7,56,000 1,45,000 2,09,000<br>Claim limited to 4,50,000<br>**----- End of picture text -----**<br> 20. In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.2,09,000/- (Rupees two lakhs** **nine thousand only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the **date of petition on 19.8.2009** till realisation excluding 325 days, the delay caused in filing this MACA.No.2472 of 2013 12 appeal. The 3[rd] respondent 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. The claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Sd/- **M.R.ANITHA JUDGE** SMF