Livish v. Saifudeen and Hydrose and The New India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** ## **MACA NO. 543 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 765/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA, THRISSUR** **APPELLANT/PETITIONER:** **LIVISH, S/O.VIJAYAN TAZHETHUVEETTIL HOUSE, VADAKKUMKARA VILLAGE,, VELLANAGALLORE.** **BY ADV SRI.T.N.MANOJ** ## **RESPONDENTS/RESPONDENTS:** - 1 **SAIFUDEEN, S/O.HYDROSE, CHANDIPARAMBIL HOUSE, KARUMATHRA,, KADALAZHI.P.O, KONATHUKUNNU, THRISSUR DISTRICT.** - 2 **HYDROSE S/O.PAREED CHAVELIPARAMBIL HOUSE, KARUMATHRA,, KADALAZHI.P.O, KONATHUKUNNU, THRISSUR DISTRICT.** - 3 **THE NEW INDIA INSURANCE CO.LTD. VELLANIKARAN BUILDING, MAIN ROAD, IRINJALAKUDA. BY ADV SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 543 OF 2010 **2** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.765 of 2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 31.12.2005 while the appellant was walking along to the Vellangallur road, he was hit by Jeep (offending vehicle) bearing registration No.KL-8J-1670 driven by the 2[nd] respondent in a rash and negligent manner. The offending vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The appellant was a 10[th] grade student. The appellant sustained serious injuries and was admitted in the Co-operative Hospital, Irinjalakuda and, thereafter, at the West Fort Hospital, Thrissur. Due to the accident, the MACA NO. 543 OF 2010 **3** appellant suffered memory loss and could not continue his eduction. The appellant contended that the respondents were jointly and severally liable to pay the compensation, which he quantified at Rs.4,69,600/-, but limited to Rs.4,00,000/-. 3. The respondent Nos.1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement admitting that the jeep had a valid insurance coverage. 5. The appellant produced and marked Exts.A1 to A6 in evidence. The 3[rd] respondent produced and marked Ext.B1 policy. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part by permitting the appellant to realize an amount of Rs.1,41,550/- with interest @ 7% per annum from the date of petition till the date of realisation and MACA NO. 543 OF 2010 **4** proportionate costs from the respondents. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.T.N.Manoj, the learned counsel appearing for the appellant/petitioner and Sri.V.P.K.Panicker, the learned counsel appearing for the 3[rd] respondent/insurance company. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation fixed by the Tribunal is reasonable and just? 10. Ext.A1 FIR registered by the Irinjalakuda Police in Crime No.15/2006 proves the fact that the accident occurred solely on account of the negligence of the 2[nd] respondent, who drove the vehicle in a manner. offending negligent Undisputedly, the 1[st] respondent was the owner of the vehicle and 3[rd] respondent was the insurer of the vehicle. Therefore, it is the 3[rd] respondent MACA NO. 543 OF 2010 **5** who is liable to indemnify the 1[st] respondent, provided the 1[st] respondent had complied with the conditions of the insurance policy. 11. The appellant was a 10[th] grade student aged 16 years. He had fixed his notional income at Rs.2,500/- per month. 12. The Tribunal fixed the notional income of the appellant at Rs.15,000/- per year i.e., an amount of Rs.1,250/- per month. 13. The Honourable Supreme Court in **Kishan** ## **Gopal & another v.Lala & others (2014) 1** - **SCC 244** has fixed the notional income of a 10 year old student at Rs.30,000/- per annum. Therefore, the monthly income that was taken was Rs.2,500/-. ## **- Notional Income:** 14. Following the ratio in the afore-cited decision, I accept the claim put-forth by the appellant that he had a notional income of Rs.2,500/- per month. MACA NO. 543 OF 2010 **6** ## **- Disability:** 15. The Tribunal after taking note of Ext.A4 disability certificate and seeing the appellant and finding that he had a prominent scar on his head and he had lost three teeth in the accident and was having memory impairment assessed his disability at 10%. In view of the fact finding exercise carried out by the Tribunal, I confirm the finding of the Tribunal with regard to the assessment of disability of the appellant at 10%. ## **- Multiplier:** 16. In light of the law laid down by the Honourable Supreme Court in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802] (SC) followed by the decision in **Pappu Deo Yadav v. Naresh Kumar & Others AIR 2020 SC 4424** and the appellant being 16 years at the time of accident, the relevant multiplier is '18'. MACA NO. 543 OF 2010 **7** ## **Loss due to disability** 17. Considering the above factors, namely, the notional income of the appellant at Rs.2,500/- per month, his disability at 10% and the multiplier at '18', I re-fix the compensation for loss due to disability at 'Rs.54,000/-' instead of Rs.24,000/awarded by the Tribunal. ## **Compensation for pain and suffering** 18. The appellant had claimed an amount of Rs.30,000/- as compensation for pain and sufferings. However, the Tribunal awarded only an amount of Rs.12,000/-. 19. It is seen from the materials available on record that the appellant was treated as an inpatient for a period of 33 days in two hospitals. He had suffered a fracture of his occipital bone with diffused edema and also suffered from meningitis due to accident. In such circumstances, I am of the firm opinion that the appellant is entitled for compensation under the MACA NO. 543 OF 2010 **8** head pain and sufferings at Rs.20,000/- i.e., an enhancement by a further amount of 'Rs.8,000/-'. ## **Loss of amenities** 20. The appellant had claimed an amount of Rs.10,000/-, but the Tribunal awarded only an amount of Rs.3,000/-. Taking note of the facts already mentioned under the head 'pain and sufferings', I am of the opinion that the appellant is entitled for a further amount of Rs.7,000/- i.e., a total amount of Rs.10,000/- as compensation for loss of amenities as claimed in his claim petition. ## **Compensation for loss of eduction** 21. It is on record that the appellant was a 10[th] grade student, who was appearing for his SSLC examination. 22. As a result of the accident, the appellant was totally disabled and had lost one academic year. Accordingly, the appellant claimed a compensation of Rs.1,00,000/- for loss of eduction. MACA NO. 543 OF 2010 **9** 23. Taking into account, the observations made by the Tribunal after seeing the appellant that he had memory loss and was treated as an inpatient for a period of 33 days and was unable to appear for the examination during the said academic year, I am of the considered opinion that the appellant is entitled for compensation for loss of education, which I fix at 'Rs.15,000/-.' ## **Future treatment** 24. It is on record that the appellant had sustained a fracture at his occipital bone with diffuse edema and he got inflicted with meningitis. He was treated as an inpatient for a period of 33 days. In view of the long tenure of treatment that he had to undergo and for the follow-up treatment, I hold that a reasonable amount has to be awarded towards future treatment, which I fix at 'Rs.10,000/-'. 25. With respect to the other heads of compensation, I find that the Tribunal has MACA NO. 543 OF 2010 **10** awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings, materials on record, and the law referred to in the above-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference: **==> picture [383 x 395] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount Amounts<br>No awarded modified<br>by the and<br>Tribunal recalcula<br>(in ted by<br>rupees) this<br>Court<br>1 Transportation 1,000 1,000<br>expenses<br>2 Bystander expenses 3,300 3,300<br>3 Extra nourishment Nil 2,000<br>4 Medical expenses 86,200 86,200<br>5 Pain and sufferings 12,000 20,000<br>6 Loss of amenities 3,000 10,000<br>7 Future treatment Nil 10,000<br>8 Loss of Education Nil 15,000<br>9 Loss of income of the 1,550 1,550<br>appellant's father<br>10 Disfigurement 10,500 10,500<br>Total 1,17,550 1,59,550<br>**----- End of picture text -----**<br> MACA NO. 543 OF 2010 **11** In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.42,000/- with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of deposit and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. ## **Sd/-** **C.S.DIAS, JUDGE** AMV/26/07//2021