Krishnadevi v. Muhammed Hanifa and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 MACA.No. 1126 of 2008() ----------------------OPMV.859/1998 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... APPELLANT(S): APPELLANT/CLAIMANT -------------------------------- KRISHNADEVI, AYIKKUNNATHU KOCHU VEEDU, CHINGOLI P.O. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. MUHAMMED HANIFA, NATTERIVILAYIL VEETTIL, VENGARA MURI, KALLELI BHAGAM, KARUNAGAPPALLY. 2. ABDUL HAKIM, KALATHIVILA PUTHENVEEDU, VENGARA, THODIYOOR NORTH P.O., KARUNAGAPPALLY. 3. THE NEW INDIA ASSURANCE CO.LTD., REP. BY ITS DIVISIONAL MANAGER, COCHIN. 4. K.J.JOSEPH, KOIKKARA HOUSE, KIZHAKKAMBALAM P.O., PERUMBAVOOR. ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R2 SRI.A.R.DILEEP FOR R2 SMT.SURYA SASI FOR R2 SRI.M.RAJAGOPALAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: # **R. BASANT & M.L. JOSEPH FRANCIS, JJ.** **------------------------------------------------M.A.C.A. No. 1126 of 2008 ------------------------------------------------Dated this the 22[nd] day of September, 2011** ## **JUDGMENT** **Basant,J.** The claimant is the appellant. She was a minor girl aged 14 years when she suffered injuries. The accident took place on 17/4/1998. She had suffered multiple injuries including fractures. There was fracture of both bones of the left leg. There was exposed ankle joint and soft tissue loss. There was traumatic amputation of right foot. Two operations had to be performed on 17/4/1998 and 28/5/1998. She was an inpatient for a period of 49 days (17/4/98 to 5/6/1998). She continued to be an outpatient thereafter. Against a total claim of `10,96,000/(mis-described as claim for `11,50,000/-), the Tribunal awarded a total amount of `1,58,900/- as per the details given below: ## **M.A.C.A. No. 1126 of 2008** -: 2 :- |**Sl. No.**|**Head of claims**|**Claim amount**|**Award**| |---|---|---|---| |**1**|**Transport to hospital**|**Rs.6,000.00**|**Rs.3,000.00**| |**2**|**Extra nourishment**|**Rs.10,000.00**|**Rs.2,500.00**| |**3**|**Damage to clothing and articles**|**Rs.500.00**|**Nil**| |**4**|**Medical expenses**|**Rs.17,000.00**|**Rs.2,950.00**| |**5**|**Bystander's expenses**|**Rs.12,500.00**|**Rs.2,450.00**| |**6**|**Compensation for pain and**<br>**suffering**|**Rs.50,000.00**|**Rs.30,000.00**| |**7**|**Compensation for continuing or**<br>**permanent disability**|**Rs.7,50,000.00**|**Rs.1,08,8000.00**| |**8**|**Compensation for the loss of**<br>**earning power**||**(Rs.18,000 x 15 x**<br>**40/100)**| |**9**|**Compensation for loss of amenities**<br>**in life**|**Rs.1,50,000.00**|**Rs.10,000.00**| |**10**|**Loss of marriage prospects**|**Rs.1,00,000.00**|**Nil**| ||**Total**|**Rs.10,96,000.00**|**Rs.1,58,900.00**| 2. The insurer has been made entirely liable to pay the compensation. Challenge is raised only on the ground that the quantum of compensation awarded is inadequate. We have heard the learned counsel for the appellant/claimant and the respondent/insurance company. The learned counsel for the appellant assails the impugned award on various grounds. 3. First of all, the learned counsel for the appellant contends that the amounts awarded under the head of extra nourishment and bystander's expenses are painfully low and ## **M.A.C.A. No. 1126 of 2008** -: 3 :- inadequate. She was an inpatient for a period of 49 days. We are satisfied that compensation at the rate of `100/- per day under each of the said two heads can be awarded as compensation for the entire period of hospitalisation i.e., 49 days. For damage to clothing and articles, no amount has been awarded. Even in the absence of any better evidence, we feel that an amount of `1,000/- can be awarded as compensation under that head. 4. Under the head of medical expenses, an amount of `17,000/- was claimed; but bills were produced only for an amount of `2,950/-. The learned counsel for the appellant argues and we agree that it would be idle and unrealistic for Tribunals to expect the claimants to maintain meticulous accounts duly supported by vouchers to prove all items of expenditures. Insistence on production of bills and vouchers ritualistically will lead only to production of concocted documents. The period of hospitalization can be taken into account. The nature of injuries can be taken into account. The nature of procedures that have been undergone can also be taken note of. Taking all the relevant circumstances into account, we are satisfied that at least an amount of `5,000/- should safely ## **M.A.C.A. No. 1126 of 2008** -: 4 :- have been awarded under the head of medical expenses. 5. There was amputation of right foot and there is merit in the contention that appropriate provision must be made for future treatment also. Artificial limb will have to be secured. It will have to be periodically changed. Taking all the relevant circumstances into account, we are satisfied that a further amount of `12,500/- can be awarded under the head of future medical expenses. For compensation for pain and suffering, an amount of `30,000/- has already been awarded and we find no reason to interfere with the amount of compensation awarded under that head invoking our appellate jurisdiction under Sec.173 of the Motor Vehicles Act. 6. The learned counsel for the appellant then contends that the amount of compensation awarded under the head of permanent disability (loss of earning power) is too inadequate. The claimant/victim was a young girl aged 14 years at the time of accident. She had not started earning. Certainly, her ability to earn would be considerably and substantially reduced on account of the injury suffered and the consequent disability. The ascertainment of compensation for reduction in earnings of such a person who has not started earning certainly involves a lot of ## **M.A.C.A. No. 1126 of 2008** -: 5 :- guesstimation. We have no better indications to suggest the physical, mental and intellectual accomplishments of the child. Her father is an ordinary daily labourer, it is submitted at the Bar. Certainly it is reasonable to assume that such a minor young female child would have completed her education and would have taken up some employment consistent with the times. At any rate, it is reasonable to assume that she would have been discharging her duties as a house-wife. Monthly earnings has to be ascertained. We take note of the presumption of prudence permitted under Clause 6 of Schedule II of the M.V. Act. We take note of the decisions of the Supreme Court in **Lata Wadhwa v. State of Bihar** (AIR 2001 SC 3218) and **Laxmi Devi v. Mohammad Tabbar** (2008 ACJ 1488) which suggest that even for a non-earning home maker and an unskilled manual labourer monthly income can safely be assumed at this juncture to `3,000/-. We take note that the child had not reached the age of earning. We take note that the accident and the disability were suffered in April 1998. Taking all the relevant circumstances into account, we are satisfied that even in the absence of any better evidence the probable monthly income of the child can be reckoned at `2,500/-. ## **M.A.C.A. No. 1126 of 2008** -: 6 :- 7. For the traumatic amputation of the right foot, the Tribunal reckoned only 40% as the disability and reduction in earning capacity. The learned counsel for the appellant points out that going by Entries 20, 21 and 22 of Part 2 of Schedule I of the Employees' Compensation Act, 50% is accepted as the reduction in earning capacity when there is loss of one foot. We agree with the learned counsel for the appellant that 50% can safely be reckoned as the extent of reduction in earning capacity. 8. We now come to the question of adopting appropriate multiplier. Under the II Schedule to the M.V. Act 15 is reckoned as the multiplier for persons of the age upto 15 years. However, it is pointed out that 20 is the effective multiplier taken under the II Schedule while prescribing the amounts payable as compensation for death. We have been taken through the multipliers accepted in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121]. For persons aged 15 to 20 years and 21 to 25 years, 18 is accepted as the multiplier. In any view of the matter, we are satisfied that it would be absolutely safe in this claim under Sec.166 of the M.V. Act to reckon 17 as the multiplier for the appellant/claimant who was aged below 15 years on the date of the accident. The appellant would therefore ## **M.A.C.A. No. 1126 of 2008** -: 7 :- be entitled to an amount of `2,55,000/-(2500 x 12 x 17 x 50/100) as compensation for reduction in earning capacity. 9. There has been no actual loss of earnings as the child was a student and had not started earning. But for her inability to pursue her ordinary pursuits and the consequent reduction in educational progress during the period of hospitalization and treatment, she is certainly entitled for compensation. She was in the hospital for a period of 49 days as an inpatient. It is only reasonable to assume that she would have been involuntarily disabled from pursuing her educational career for a period of 4 months. This loss also deserves to be compensated. We are satisfied that an amount of `10,000/- (2500 x 4) can be awarded as compensation in retardation in her educational progress. The physical disability suffered by a person leaves behind two fold reflections in life. It reduces the earning capacity. It also impairs the quality of enjoyment which the person can afford to lead thereafter. We have already taken note of the fact that she has lost her right foot and there is physical disability/reduction in earning capacity to the extent of 50%. The young girl will have to be endure this disability for rest of her life and we are in agreement with the learned counsel for the appellant that an ## **M.A.C.A. No. 1126 of 2008** -: 8 :- appropriate amount of compensation ought to be awarded under the head of loss of amenities. Only an amount `10,000/- has been awarded as compensation under this head. We must take note of the sum total of the disabilities, inconveniences, discomfitures and the shortened expectation of life which would necessarily visit the appellant because of the disability suffered by her. We are satisfied that an amount of `30,000/- can be awarded as compensation under this head. 10. The learned counsel for the appellant contends that so far as the appellant, a minor girl, is concerned, the disability suffered would substantially hamper her prospects of marriage. We feel that it would realistic to award a further amount of compensation in addition to the amount awarded under the head of loss of amenities in life. We are satisfied that an amount of `25,000/- can be awarded as compensation under this head. 11. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of `2,22,400/- (Rupees two lakhs twenty two thousand and four hundred only) in addition to the amount awarded by the Tribunal as per details shown below: ## **M.A.C.A. No. 1126 of 2008** -: 9 :- |1.|Retardation in educational||| |---|---|---|---| ||progress (4 x 2500)||| ||(no amount awarded by the||| ||Tribunal)|-|`10,000/-| |2.|Damage to clothing and||| ||articles (no amount awarded||| ||by the Tribunal)|-|` 1,000/-| |3.|Extra nourishment||| ||(49 x 100 minus 2500)|-|` 2,400/-| |4.|Medical expenses||| ||(`5,000/- minus `2,950/-)|-|` 2,050/-| |5.|Future medical expenses|-|`12,500/-| |6.|Bystander's expenses||| ||(49 x 100 minus 2450)|-|` 2,450/-| |7.|Compensation for reduction||| ||in earning capacity||| ||(2500 x 12 x 17 x 50/100 =||| ||`2,55,000/- minus `1,08,8000/-)|-|`1,47,000/-| |8.|Compensation for loss of||| ||amenities in life||| ||(`30,000/- minus `10,000/-)|-|`20,000/-| |9.|Loss of marriage prospects||| ||(no amount awarded by the||| ||Tribunal)|-|`25,000/-| ||||---------------| ||Total|-|`2,22,400/-| ||||=======| ## 12. In the result: (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of ## **M.A.C.A. No. 1126 of 2008** -: 10 :- - `2,22,400/- (Rupees two lakhs twenty two thousand and four hundred only) in addition to the amount awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal in the impugned award. - (d) All other directions of the Tribunal are upheld. Sd/- **R. BASANT (Judge)** **Sd/M.L. JOSEPH FRANCIS (Judge)** ## **Nan/** **//true copy// P.S. to Judge**