## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938**
**MACA.No. 2344 of 2010 ( ) --------------------------**
## **AGAINST THE AWARD IN OPMV 1943/2004 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE**
## **APPELLANT/PETITIONER:**
**-----------------------**
**KALLIANI, AGED 11 YEARS, D/O. SETHUNATH, DEVIKA, PUTHALATH MEETHAL,, NELLIKODE.P.O, KOZHIKODE THE APPELLANT IS A MINOR REPRESENTED BY HER MOTHER AJITHA.**
## **BY ADVS.SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH**
## **RESPONDENTS/RESPONDENTS:**
- **--------------------------**
**1. SAINUDDIN, S/O. AHAMMED KUTTY HAJI, VAYOLI HOUSE, MADAVOOR.P.O, KOZHIKODE - 673 853.**
**2. THE NEW INDIA ASSURANCE CO. LTD., SILVER PLAZA, MAVOOR ROAD,, KOZHIKODE - 673 004.**
**R,R3 BY ADV. SRI.V.R.REKESH R,R2 BY ADV. SRI.KKM.SHERIF R,R3 BY ADV. SRI.A.A.ZIYAD RAHMAN**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **C.K.ABDUL REHIM & SHIRCY.V,JJ**
## **-----------------------------------**
**M.A.C.A.No.2344 of 2010 -----------------------------------------------Dated this the 5[th] day of January, 2017**
## **JUDGMENT**
## C.K.Abdul Rehim,J.
The claimant/petitioner in O.P(M.V)No.1943/2004 on the files of the Motor Accidents Claims Tribunal, Kozhikode is in appeal seeking enhancement of the amount of compensation awarded.
2. The appellant was a minor girl aged 5 years at the time of the accident, which occurred on 16.7.2004. She sustained grievous injuries when she was knocked down by a Bus, to which the second respondent herein was the insurer, while she was walking along with her mother on a public road near the Medical College Hospital, Kozhikode. The claim petition was filed through her mother as guardian (next friend). The Tribunal had awarded a total compensation of Rs.27,300/-. The award is assailed in this appeal contending that the amount granted by the
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Tribunal is too meagre a sum, considering the nature of injuries sustained, treatment and sufferings undergone by the appellant and the resultant disability suffered by her due to the injuries.
3. From the records it is evident that the appellant had produced seven documents before the Tribunal including the treatment book, two discharge cards, one referral O.P. Book, one medical prescription, a certificate issued from the school where the appellant was studying and the medical bills. Neither the appellant nor her guardian was seen examined before the Tribunal. In the impugned award it is stated that the guardian of the petitioner was directed to bring the girl, but she failed to do so. The proceeding paper (B Diary) which is available with the records would not show any endorsement that the Tribunal had issued any such direction for production of the claimant-minor girl. However, the Tribunal had marked only three documents (A1 to A3) out of the seven documents produced by the appellant. No reason is seen
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mentioned in the award as to why the other documents were not marked. Ext.A2 is the copy of the wound certificate, which would reveal that the appellant had sustained compound fracture of both bones on the left leg and fracture of femoral condyle. Ext.A3 series documents marked by the Tribunal consists of the medical bills, two discharge cards, one medical prescription, one referral OP ticket and the school certificate. The Tribunal found that the discharge card produced would indicate admission of the appellant on 26.4.2005 and thereafter for two days from 24.4.2007 to 29.4.2007. The Tribunal observed that the discharge card, which is proximate to the accident is not seen produced. But Annexure A2 document would indicate that the appellant was admitted at the Medical College Hospital on 16.7.2004, ie., on the date of accident itself. The Tribunal found that there is no evidence to show that the internal fixation as shown in the discharge card was done in the hospital. Further it is observed that there is no evidence produced to show that the appellant
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is having any permanent disability. However, the Tribunal found that, considering the prolonged treatment the appellant might have lost amenities like schooling etc. Meagre amounts were awarded under different heads totalling to a sum of Rs.27,300/-.
4. While considering the appeal we are of the opinion that the Tribunal had dealt with the matter in a very casual and careless manner, even without taking into consideration about serious nature of the injuries sustained by the appellant. We do not find any reason as to why the Tribunal had failed to specifically mark the Treatment Book (case record) of the Medical College produced by the appellant, which would prove the entire history of the treatment undergone by the appellant. The Treatment Book is available on the records. On a perusal of the same it is evident that the appellant sustained segmented fracture of lower 3[rd] of left tibia, fracture on upper 3[rd] and lower 3[rd] of fibula and fracture of metaphyscal on the left femur. As per the said document
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she had inpatient treatment from 26.7.2004 to 27.9.2004, 26.4.2005 to 8.5.2005 and 24.7.2007 to 29.4.2007.
5. During the pendency of the above appeal, on the request of the appellant, this Court had referred the appellant for examination by the Medical Board attached to the Medical College Hospital. A report forwarded from the Superintendent of the Medical College Hospital, who is the Chairman of the Medical Board, would indicate that the appellant was examined by the Board and it was noted that the appellant had fracture of both bones of left leg with a degloving injury on the left leg and thigh along with metaphyscal fracture of lower 1/3[rd] of left femur. It is stated in the report of the Medical Board that there is weakness of left knee and sensory impairment due to the injury sustained. The Medical Board had assessed the extent of permanent disability as 9%. On the basis of the above evidence available on record, we are inclined to rework the calculation regarding the compensation for which the appellant is entitled.
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6. The appellant is a minor girl aged 5 years at the time of the accident. It has come out in evidence that she suffered permanent disability to the extent of 9%. Considering the guidelines prescribed by the Honorable Supreme Court in its decision in _**Master Mallikarjun vs.**_
_**Divisional Manager, National Insurance Company Ltd and another (2013(3) KLJ 815)**_ . She is entitled to a compensation of Rs.1 lakh in addition to the actual expenditure incurred for treatment etc.
7. The learned counsel for the appellant had specifically pointed out that the disability certificate issued from the Medical Board would indicate that the appellant had shortening of her left leg for less than ½ inches and she is having partial loss of sensation. It is contended that the above disabilities will affect her marriage prospects in future. Photographs showing deformity of the left leg of the appellant is produced for our perusal. Considering the exemptional circumstances, we are inclined to grant a sum of Rs.1,25,000 **/-** under the heads of compensation
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for permanent disability. The appellant had produced the medical bills to the tune of Rs. 9800/-. So we are inclined to accept the compensation awarded by the Tribunal under that head. The Tribunal had awarded incidental charges at Rs.2000/- which according to this Court is not proper and adequate. The appellant might have incurred expenditure for transportation to hospital, which we reasonably estimate as Rs.3000/-. She might have lost her clothes and other articles in the accident for which we grant a compensation of Rs.1000/-. A sum of Rs.3000/- is granted towards charges for extra nourishment. She had continued treatment for a long period and might have required expenses for bystanders, which we reasonably assess at Rs.6000/-. Therefore, the total compensation for which the appellant is entitled is worked out to Rs.1,47,800/-.
8. Hence the above appeal is allowed in part modifying the award of the Tribunal in O.P.(M.V) No.1943/2004 to the extent of granting a total
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compensation of Rs.1,47,800/- to the appellant/claimant. The above said amount of compensation will carry interest at the rate of 7% per annum from the date of the claim petition, ie; from 12.10.2004, till realisation. The 2[nd] respondent insurance company is directed to make payment of the above said amount, less if any already paid, within a period of two months from today.
On the deposit, the appellant will be at liberty to approach the Tribunal seeking withdrawal of the amount. On the event of which the Tribunal shall pass appropriate orders without any further delay, considering the question of permitting withdrawal.
**C.K.ABDUL REHIM JUDGE**
**SHIRCY.V**
**JUDGE**
smm
