Deepika d/o Sulojana v. K. Balanarayanan, V. Prabhakaran and National Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944 ``` ## **`MACA NO. 622 OF 2013`** ``` AGAINST THE AWARD IN OPMV 853/2004 OF SPECIAL COURT FOR EC ACT ``` ``` CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` DEEPIKA D/O.SULOJANA, KAKAYINCODE HOUSE, KONGAD, PALAKKAD, ``` ``` NOW RESIDING AT C/O. KUMARI PALLATH HOUSE, P.O.THIRUMITTAKODE, WADAKKANCHERY. ``` ``` BY ADV SRI.P.V.CHANDRA MOHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`K.BALANARAYANAN`**| |---|---| ||**`S/O.GOPALAKRISHNAN,`**| ||**`NARAYANA NILAYAM, CHERPLASSERY,`**| ||**`PALAKKAD. 680 001.`**| |**`2`**|**`V.PRABHAKARAN`**| ||**`S/O.APPUNNI NAIR, AUTHEN VEEDU,`**| ||**`PANIYAMKURUSSY, CHERUTHURUTHY.679 531.`**| |**`3`**|**`NATIONAL INSURANCE COMPANY LTD.`**| ||**`CHENNAI. 600 001.`**| ||**`BY ADV SRI.LAL GEORGE`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 622 OF 2013 ``` ``` 2 ``` ## **JUDGMENT** This is an appeal filed by the appellant under Section 173 of the Motor Vehicles Act, who was aged 9 years at the time of accident, now attained majority, challenging award in O.P.(MV).No. 853/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur dated 28.04.2011. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant as well as the learned counsel for the Insurance Company. 3. The short facts are as follows: A minor lodged claimed before the Tribunal, on the allegation that she sustained serious injuries pursuant to an accident occurred on 06.12.2003 at about 9.30 a.m. while she was standing in front of Kongad Government U P School. It was alleged that a bus bearing registration No. KL-9/J 84 driven by the 2[nd] respondent in a rash and ``` MACA NO. 622 OF 2013 ``` ``` 3 ``` negligent manner from the east to west, hit her down and accordingly compensation to the tune of Rs.2,30,000/from respondents 1 to 3 was asked for. 4. Respondents 1 and 2 were declared ex parte by the Tribunal. 5. The third respondent Insurance Company filed written statement disputing negligence attributed against the second respondent and it was contended that the accident was the outcome of contribution of negligence on the part of the minor. Apart from that, quantum of compensation claimed under various heads was opposed, being excessive. 6. The Tribunal adjudicated the claim acting on the evidence of PW1 and Exts.A1 to A11 marked on the side of the appellant since no evidence let in by the respondents. ``` MACA NO. 622 OF 2013 ``` ``` 4 ``` 7. Thereafter, the Tribunal granted Rs.62,400/- as compensation as against the claim of Rs.2,30,000/- along with 8% interest per annum. 8. It is argued by the learned counsel for the appellant that the Tribunal accepted 8% disability in this case, though as per Ext.A9 disability certificate issued by Dr.Jacob P.J, Assistant Professor of Orthopaedics, Medical College Hospital, Thrissur, assessed 14% disability and he had given evidence to support the said disability. According to the learned counsel, 14% disability as such to be considered in this matter and compensation following the ratio in **Mallikarjun v. Divisional Manager, National Insurance Co. Ltd and another (2013 ACJ 2445),** is to be granted since the compensation granted by the Tribunal is on lower side. 9. But it is submitted by the learned counsel for the insurer that 14% disability assessed by the Doctor is on higher side, in a case, where the minor sustained only ``` MACA NO. 622 OF 2013 ``` ``` 5 ``` reduced dislocation of first metacarpal joint along with crush injury on the dorsom of left hand with scar. 10. In order to decide what is the percentage of disability to be fixed in this case, appreciation of evidence of PW1 and Ext.A7 along with treatment records is necessary. In this attempt, I have perused Ext.A4, the discharge card issued from Medical College Hospital, Thrissur, showing admission and treatment of appellant for a period from 05.12.2003 to 16.01.2004. Crush injury (left) forearm and hand , tissue loss with first metacarpal joint subluxation are the diagnosis found in Ext.A4 and K wire fixation is the treatment given. In Ext.A9 disability certificate also, dislocation of first metacarpal joint with stiff MCP joint of index finger (left) is the serious infirmity noted along with deformation on lower end of radius (left) with inferior radio-ulnar subluxation (left). Though the Doctor initially supported 14% disability as per Ext.A9, during cross-examination, he would say that the fracture ``` MACA NO. 622 OF 2013 ``` ``` 6 ``` was noted in P2 though it was stated in Ext.A7 that fracture was on P1. He also given evidence that the fracture was united and there was no implant at present. This is the context in which, the Tribunal fixed the disability at 8%. Thus, on re-appreciation of evidence, the disability is re-fixed and the same would come to 10% and nothing more. In view of the matter, following the ratio in **Mallikarjun’s** case (supra), Rs.1,00,000/- to be given as compensation under the heads pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort etc. and loss of amenities in life on account of permanent disability. Apart from that, actual medical expenses, future medical expense, if any, and bystander’s expenses can be granted. In addition to that, discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation also can be considered. Accordingly, **Rs.1,00,000/-** is granted under ``` MACA NO. 622 OF 2013 ``` ``` 7 ``` the head ‘pain and suffering’ and other heads stated above. Medical bills to the tune of **Rs.1,813/-** is also liable to be granted. 11. As per Ext.A10, Dr.Faizal Kareem, Moulana Hospital, Malappuram issued a certificate dated 22.10.2010 showing that correction surgery is required in the case of minor and approximate cost would come to Rs.40,000/-. 12. It appears that no documents produced to show that the appellant underwent correction surgery as certified in Ext.A10 though 12 years period already been elapsed after issuance of Ext.A10. However, the correction surgery certified in Ext.A10 need not be disbelieved in toto. Therefore, I am inclined to grant **Rs.20,000/-** under the head ‘future medical treatment’ along with 8% interest from 28.04.2011 (the date of award). Apart from that, **Rs.15,000/-** more is granted towards discomfort, inconvenience and loss of earnings ``` MACA NO. 622 OF 2013 ``` ``` 8 ``` to the parents during the period of hospitalisation which comes to 43 days as evident from Ext.A4. It is pointed out by the learned counsel for the appellant that though a minor was hospitalised for 43 days, the Tribunal granted Rs.2,000/- alone under the head ‘bystander’s expenses’. This submission appears to be correct. Therefore, bystander’s expense is re-calculated at the rate of Rs.150 for 43 days. Accordingly, Rs.6,450/- is granted under the head ‘bystander’s expense’. Reducing Rs.2,000/- granted by the Tribunal, **Rs.4,450/-** more is granted under this head. In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.1,41,263/as total compensation. Since Rs.62,400/- was granted by the Tribunal and the balance is **Rs.78,863/-** (Rupees seventy eight thousand eight hundred and sixty three only) is granted as enhanced compensation. Out of the same, Rs.58,863/- is granted with the same rate of ``` MACA NO. 622 OF 2013 ``` ``` 9 ``` interest awarded by the Tribunal, payable by the Insurance Company, from the date of petition till the date of deposit or realisation and Rs.20,000/- granted towards future prospects shall also carry the same rate of interest from 28.04.2011, excluding 518 days wherein, grant of interest was specifically excluded as per order dated 16.06.2022 in C.M.Application No.808/2013. The third respondent is directed to deposit the amount in the name of the appellant, within two months. On deposit, the appellant is entitled to withdraw the same. ## **Sd/-** **A. BADHARUDEEN JUDGE** nkr