C Hashim v. Oriental Insurance Co Ltd

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, ``` ## **`1945`** ## **`MACA NO. 1123 OF 2022`** ``` AGAINST THE JUDGMENT IN OPMV 1508/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` C HASHIM AGED 14 YEARS SON OF HAMZA, D.O.B. 21/2/1991, REPRESENTED BY MOTHER AND GUARDIAN KADEEJA, D/O MOYINKUTTY, KAVIL HOUSE, G.H. ROAD, FEROKE, KOZHIKODE., PIN - 673301 ``` ``` BY ADV JACOB ABRAHAM ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE ORIENTAL INSURANCE CO LTD REPRESENTED BY IT BRANCH MANAGER, KINGSWAY BUILDING, MAVOOR ROAD JUNCTION, KOZHIKODE, PIN - 673001 ``` ``` BY ADV P.K.ManojKumar ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 1123/22** ..2.. ## **JUDGMENT** On 12.03.2004, when the appellant - who was merely 13 years in age - was riding his bicycle on a public road, he was hit by the offending bus, driven in a rash and negligent manner. He was a student of the 7[th] standard in an Upper Primary School and the injuries sustained by him and the aftermath of the accident was so horrendous, that he has been completely bed ridden and unable to continue his life without the help of others. 2. The appellant had to be treated for a very long period of time, including as an inpatient for 330 days in different spells; and therefore, filed OP(MV)No.1508/2006 before the Motor Accidents Claims Tribunal, Kozhikode, seeking compensation of an amount of Rs.13,96,000/-, but which has been allowed only to the sum of Rs.6,64,671/-. He thus assails the said Award as being inadequate and exiguous. 3. Sri.Jacob Abraham - learned counsel appearing for the appellant, impressed upon me the horrific aftermath of the accident caused on the little child, taking me extensively through the medical evidence and reports. He argued that the **MACA 1123/22** ..3.. child was a very bright and amiable one, until the accident; but that, consequent to it, he has been confined to a vegetative state, being unable to do anything on his own and thus incapacitated from continuing his studies. He contented that, therefore, no amount of compensation could wipe of the trauma of the appellant and his family; and therefore, that the learned Tribunal was completely in error in having granted only Rs.6,64,671/- as compensation. 4. Sri.Jacob Abraham thereafter submitted that, one of the reasons why the compensation awarded by the learned Tribunal to be exiguous is because, it adopted the notional income of the child to be a mere Rs.15,000/- per annum, which is woefully insufficient. He then pointed out that, when Ext.C1 disability certificate, certified the child to be 50% disabled, the compensation awarded by the learned Tribunal ought to have been much more, particularly because even when such certification has been made, the fact remains that the child is completely bed ridden and requiring a full time assistant even for his basic needs. He thus prayed that this appeal be allowed and the compensation awarded be substantially enhanced. **MACA 1123/22** ..4.. 5. In response, Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company, argued that, since the disability faced by the appellant is only 50% - as has been certified in Ext.C1, the compensation awarded by the learned Tribunal is without error. He thus prayed that this appeal be dismissed. 6. I have examined the afore rival contentions of the parties and have tested them on the worth of the evidence on record – copies of which have been made available to this Court by the learned counsel for the parties across the Bar, with the express consent that they can be acted upon, without dispute. 7. I must say upfront that the constitutive facts in this case are not in dispute. The appellant was a student at the time of the accident, of a mere 13 years in age, is without contest; and that he suffered grievous injuries, confining him to bed is also without controversy. In fact, the learned Tribunal itself has recorded, in paragraph 12 of the impugned Award, that after the accident, the appellant had to discontinue his studies and that he has lost his childhood. It has found that the **MACA 1123/22** ..5.. appellant is 50% disabled, with his urethra ruptured and with no control over urine, for which he has to carry a bag, perhaps for rest of his life. It has also been found by the learned Tribunal that the appellant is not physically competent in any of his daily needs, or his basic routines, without the help of others, which is fortified by the evidence of PW1 - his mother, which remains unimpeached. 8. The medical evidence on record, particularly Ext.A2 – Wound Certificate records the injuries sustained by the appellant to be as under: “ _Fracture left femur, Fracture both ramaus, pelvis, pertinealtar, urethral rupture, Splint lacerated wound about 30x7x5cm starting from below iliac spine extending into scrotum, Perineum and rupture left testis exposed”._ 9. Ext.A8 – Treatment Book issued by the Medical College Hospital, shows the amount of treatment that had to be endured by the young appellant and that he was under inpatient treatment for more than 330 days. 10. Therefore, even though, technically, the disability has been found to be only 50%, the functional disability of the **MACA 1123/22** ..6.. appellant is much more,especially when he has to carry a urine bag, attached to his body through a catheter, for rest of his life; and being virtually immobile, because of the injuries sustained to him in the spine and scrotum. The trauma and the agony suffered by the young boy can never be understated; and, as rightly argued by his learned counsel - Sri.Jacob Abraham, it cannot be converted into pecuniary terms either. 11. I am, therefore, of the firm view that the compensation awarded by the learned Tribunal requires to be substantially enhanced, which I propose to do presently. 12. As rightly pointed out by the appellant, his notional income has been adopted to be a mere Rs.15,000/- per annum by the learned Tribunal, to arrive at the compensation now awarded. This Court has already held in _**Vinod and others v. Suresh Kumar and others**_ [MACA No.90/2018], relying upon various judgments of the Hon’ble Supreme Court, including _**Kurvan Ansari Alias Kurvan Ali v. Shyam Kishore Murmu**_ [(2022) 1 SCC 317], _**Kishan Gopal and Another v. Lala and Others**_ [(2014) 1 SCC 244], _**Rajendra Singh & Others v.**_ **MACA 1123/22** ..7.. ## _**the National Insurance Company Limited and others**_ [2020 7 SCC 256], that the notional income of a minor child, involved in this kind of accident, must be taken to be at least Rs.30,000/- per annum. Even though no future prospects can be added to this figure, because the child was only 13 years at the time of the accident, compensation for liquidated damages under other available heads can certainly be granted. 13. I notice that even after finding that the appellant was hospitalised for 330 days, the learned Tribunal has granted him only Rs.33,000/- towards “Bystander's Expenses” and Rs.3,000/- towards “Extra Nourishment”. It does not require to be expatiated that these are woefully insufficient. Further, the amount under the head future treatment has been confined to Rs.30,000/-, but without any ascertainable reason, particularly when it is without doubt that appellant has to suffer the trauma of carrying a urine bag with him, for rest of his life. He would certainly require the benefit of catheters, urine bags, glouse and such other medical articles, to help him to lead a dignified life, to the extent possible. **MACA 1123/22** ..8.. 14. I, therefore, propose that the functional disability of the appellant be treated as 80%, by a rough estimate, which I am certain could have been enhanced even to 100%, which I refrain from doing solely because the medical certificate records that he has some degree of control control over some of his other faculties. 15. When the percentile of disability is so taken, the question arises is if the appellant will have to be compensated and provided for the expenses for at least one full time attender. In _**Kajal v. Jagdish Chand & Others**_ [AIR 2020 SC 776] and _**Jithendran v. New India Assurance Company Limited and another**_ [2021 KHC 6653], the Hon’ble Supreme Court, in comparable factual scenario, awarded Rs.5,000/- per month towards expenses for an attender, adopting the multiplier as eligible. In fact, in _**Kajal**_ (Supra), it even allowed expenses for two attenders. Since the appellant herein is completely reduced to an assisted life, I am certain, he must be given the help of at least one attender, for which Rs.5,000/per month deserve to be awarded. **MACA 1123/22** ..9.. 16. For the very same reasons as afore, I am without any doubt that the compensation awarded by the Tribunal under the heads ‘Pain and Sufferings’ and ‘Loss of Amenities’ require to be enhanced, with the sums in the afore heads being substantially increased. 17. I further notice that the learned Tribunal has awarded Rs.50,000/- towards ‘Loss of Studies and Future Career’ to the appellant, but without taking note of the fact that all his milestones in his life, including career, family and such other, has been completely erased. Obviously, a larger amount will have to be awarded under that head, including for ‘Loss of Marriage Prospects and fruitful life’. In the afore circumstances, this appeal is partly allowed in the following manner: a. The compensation under the head ‘Permanent Disability’ is enhanced to Rs.3,60,000/- from Rs.1,12,500/granted by the Tribunal, reckoning the annual income of the appellant to be Rs.30,000/- per annum, with the multiplier of ‘15’ being adopted as per **Sarla Verma** (supra) and the percentile of disability to be 80%. **MACA 1123/22** ..10.. b. An additional amount, at the rate of Rs.1,500/- per month, is awarded towards expenses of “Medical Articles” like urine bag, catheter, gloves and such other, being guided by the judgment in _**Abhimanyu Partap Singh v. Namita Sekhon & Another**_ [Civil Appeal No.4648/2022]. Resultantly, under this head an amount of Rs.2,70,000/- is granted, with multiplier ‘15’ adopted as per **Sarla Verma** (supra). c. An amount of Rs.9,00,000/- is additionally awarded towards ‘Attender Charges’, reckoning Rs.5,000/- per month and adopting ‘15’ as the multiplier as per **Kajal** (supra) and **Sarla Verma** (supra). d. The compensation awarded by the Tribunal under the head ‘Bystanders Expenses’ is enhanced to Rs.99,000/-, reckoning Rs.300/- per day for such expenses and taking 330 days of hospitalisation, as found by the Tribunal. e. The compensation under the head ‘Loss of Amenities’ is enhanced to Rs.66,000/-, reckoning the _per diem_ expenses for such purpose to be Rs.200/-, for 330 days of hospitalisation. f. The compensation under the head ‘Pain and Sufferings’ is enhanced to Rs.2,00,000/- as has been claimed **MACA 1123/22** **==> picture [26 x 9] intentionally omitted <==** by the appellant, taking note of the fact that his functional disability is virtually 100%. g. The compensation under the head ‘Extra Nourishment’ is enhanced to Rs.49,500/-, reckoning Rs.150/per day for 330 days of hospitalisation. h. The compensation under the head ‘Future Treatment’ is enhanced to Rs.50,000/- as has been claimed, from Rs.30,000/- awarded by the Tribunal. i. The compensation under the head ‘Loss of Studies and Future Career’ is enhanced to Rs.1,00,000/-, from Rs.50,000/- awarded by the Tribunal. j. An additional amount of Rs.1,50,000/- is awarded towards ‘Loss of Marriage Prospects and Fruitful life’ to the appellant. Consequently, the appellant will be entitled to recover the compensation, except under the head ‘Future Treatment’, as modified by this Court, from the Insurance Company, along with interest at the rate of 6% per annum from the date of claim until it is realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. **MACA 1123/22** ..12.. As far as the future treatment is concerned, the enhanced compensation will carry interest at the rate of 6% per annum from the date of this judgment until it is realised. However, while computing the interest eligible to the appellant as above, the period of 3315 days - being the delay caused by the appellant in filing the appeal - shall stand excluded. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **DEVAN RAMACHANDRAN, JUDGE** SAS/ACR **MACA 1123/22** ..13.. ## **`APPENDIX OF MACA 1123/2022`** ## `PETITIONER ANNEXURES` ``` Annexure A1ORIGINAL MEDICAL CERTIFICATE-DATED 6.3.2023 ISSUED BY DR. RAYEES RASHEED, UROLOGIST OF MEITRA HOSPITAL , KOZHIKODE TO THE PETITIONER. ```