M. M. Sreejith v. P.K. Krishnakumar, Shaji M., and The Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 28TH DAY OF JULY 2016/6TH SRAVANA, 1938** **MACA.No. 1953 of 2011 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 3284/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 29-04-2011** ## **APPELLANT/PETITIONER:** **-----------------------** **M.M. SREEJITH, S/O. MOHANDAS, MUTHALAPARAMBIL HOUSE, P.O. PYNKULAM,, CHERUTHURUTHY, THRISSUR DISTRICT.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. P.K. KRISHNAKUMAR, 1060, SKRAWARPET,, PASSUVANNAM KOIL, COIMBATORE-1.** **2. SHAJI.M, S/O.M. NARAYANN, MYLAMKUNNATH HOUSE,, P.O. KOONATHARA, VIA SHORNUR, OTTAPALAM,, PALAKKAD DISTRICT - 678001.** **3. THE ORIENTAL INSURANCE COMPANY LIMITED, MELE PATTAMBI, PATTAMBI - 678 001** ## **R3 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1953 OF 2011** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of July, 2016 ## **JUDGMENT** ## Ravikumar, J. This appeal filed by the injured petitioner carries a challenge against the quantum of compensation granted by the Motor Accidents Claims Tribunal, Thrissur as per judgement and award in O.P.(MV) No.3284/2002. The claim petition was filed by him seeking compensation for the injuries sustained, under Section 166 of the Motor Vehicles Act. The accident in which the appellant sustained injuries that led to the filing of the said claim petition occurred on 16.04.2002 at 10 a.m. while he was riding as a pillion rider on a motor cycle bearing Reg.No.TN 37/R 4085 ridden by the second respondent through Cheruthuruthy - Chelakkara public road. It hit on a stone and turned turtle. The appellant sustained injuries and he was immediately taken to West Fort Hospital, Thrissur, where he remained as an inpatient for 14 days. It is in the said circumstances that he filed the M.A.C.A.No.1953/2011 2 said claim petition seeking compensation of Rs.3,20,000/-. Before the Tribunal, no oral evidence was adduced by the appellant, though he got marked Exts.A1 to A11. On the side of the respondents, documentary evidence consisting of Ext.B1 alone was adduced. The Tribunal considered the rival contentions and appreciated the evidence on record and passed the impugned award for a total amount of Rs.1,22,899/with interest @ 8% per annum from 9.12.2002 till realization. It is seeking enhancement of the compensation that this appeal has been preferred. 2. We have heard the learned counsel for the appellant as also the learned counsel appearing for the third respondent. The contention of the appellant is that at the time of the accident, he was a student and was travelling on the motor cycle as a pillion rider. The main grievance of the appellant is that the Tribunal took the monthly income so meagrely as Rs.1,500/- and took the percentage of disability only as 4% for the purpose of computing the compensation for permanent disability. It is the further submission that the Tribunal also granted only meagre sums under other heads. M.A.C.A.No.1953/2011 3 3. The learned counsel appearing for the third respondent submitted that the appellant cannot have any grievance with respect to the notional fixation of his monthly income as Rs.1,500/- since his precise case before the Tribunal was that he was a student and as such, a non-earning person. In such circumstances, it can only be said that the Tribunal has rightly treated him as a student and then for calculation purpose fixed his monthly income notionally, it is contended. As regards fixation of the percentage of disability, it is submitted by the learned counsel that though the Tribunal was not legally bound to accept the contention of the appellant that he had incurred permanent disability as a result of the accident, owing to his failure to adduce proper evidence in that regard, the Tribunal assessed 4% as his permanent disability and therefore the appellant cannot have any further grievance regarding the fixation of the permanent disability. It is further contended that a bare perusal of the schedule of compensation given in the award would reveal that on all other heads also the appellant was adequately compensated and he was granted just compensation commensurating with the injuries. M.A.C.A.No.1953/2011 4 4. Deviating from the earlier stand, and virtually, as the main contention, the learned counsel attempted to canvass the position that the compensation for permanent disability has to be quantified in this case in terms of the structure of compensation given in the decision of the Honourable Apex Court in **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited & Another ( AIR 2014 SC 736)** . We are afraid the said contention cannot be countenanced. Evidently, the decision of the Honourable Apex Court in **Mallikarjun's** case is applicable only in respect of children who sustained severe injuries resulting in permanent disability. Depending upon the degree of disability the amount payable has to be worked out in terms of the structure of compensation laid down therein. Being a student by itself will not and cannot put his case within the purview of the decision in **Mallikarjun's** case (supra). Evidently, the very claim petition was filed by the injured petitioner himself in the year 2002 in his personal capacity. In respect of a minor, there is legal disability to sue or to be sued, in his personal capacity. The term 'child' or 'children' takes different meaning under different enactments. For the purposes M.A.C.A.No.1953/2011 5 of Sections 83 and 89 of the Indian Penal Code (Act 45 of 1860) it means 'a person who is under twelve years of age'. 'Child' means a person who, if a male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age, for the purpose of Child Marriage Restraint Act ( 19 of 1929). Certainly, the meaning assigned to the term 'child' in the said two enactments cannot be imported to the term 'child' for the purpose of Motor Vehicles Act. It is to be noted that the legal impediment for driving a motor vehicle in public place applies to a person under the age of eighteen years. The said restriction based on age is there in the matter of grant of learner's licence as well. The legal disability under the Limitation Act applies to persons upto the age of eighteen years. True that the contention of the appellant is that he was a student at the time of the accident. But then being a student alone cannot be a ground to treat a person as a 'child' for the purpose of granting compensation in a claim arising from a motor vehicle accident, in terms of the aforesaid judgment. It is also relevant to note that going by Black's Law Dictionary the term 'child' is used as the opposite of 'adult' as relates the law of negligence and in M.A.C.A.No.1953/2011 6 'laws for the protection of children' etc. A perusal of the second schedule to the Motor Vehicles Act would undoubtedly suggest that the term child will take in only a person upto the age of 15 years. 5. In the light of the aforesaid discussion and at any rate taking into account the fact that the appellant himself moved the claim petition, we have no reason to hold that the appellant had filed the claim petition before he became sui juris. Hence, he cannot be treated as a child for the purpose of applying the ratio of the decision of the Honourable Apex Court in **Mallikarjun's** case (supra) and that question is to be decided with reference to the age on the day of the accident evidently, he had not adduced any material to establish his age at the time of the accident. Certainly, the burden to prove the same and to bring the case within the purview of the decision in **Mallikarjun's** case (supra) is that of the claimant-appellant if he became sui juris only after the accident. We have no hesitation to hold that to get the benefit flowing from the said decision rather to get the compensation worked out in terms of the said decision cogent evidence so as to bring a claim petition within its ambit and proof of having sustained injuries M.A.C.A.No.1953/2011 7 resulting into a particular degree of wholebody disability, are required. The evidence on record would reveal that the appellant had not adduced evidence to prove the fact that the injuries sustained by him in the accident resulted in permanent disability and also the exact extent of his disability. True that the Tribunal took the disability as 4% for calculation purpose. We are of the view that since quantum of compensation is different for different range of percentage of disability, to earn the benefit of the said decision, one must have sustained injuries in a motor vehicle accident and that the child concerned must have incurred wholebody disability of a particular percentage supported by cogent evidence. We got no hesitation to hold that for the application of the decision in Mallikarjun's case, stricter should be the proof relating age and permanent disability. 6. In this case, though Ext.A9 disability certificate was produced, it is not a disability certificate issued by a duly constituted medical board. That apart, the doctor who issued the same was also not examined before the Tribunal. In this context it is worthy to refer to the decision of the Hon'ble Apex Court in the decision in **Raj Kumar v.** M.A.C.A.No.1953/2011 8 **Ajay Kumar [(2011) 11 SCC 343]** and the same in so far as relevant reads thus :- “The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for crossexamination with reference to the certificate.” 7. For the foregoing reasons, we are of the view that it is not M.A.C.A.No.1953/2011 9 safe to simply apply the dictum laid down by the Honourable Apex Court in **Mallikarjun's** case to grant the fixed compensation for a particular range of percentage of permanent disability sans a proven, certificate of assessment by an expert and also cogent evidence regarding the extent of permanent disability. We are of the firm view that it is desirable to have the permanent disability assessed by a duly constituted Medical Board for that purpose. At any rate, we are of the firm view that at least a proven certificate of permanent disability from a competent doctor and cogent evidence regarding the age, are required to bring a claim within the purview of Mallikarjun's case. At any rate, it is not proper or desirable to assess disability by Tribunal/Court on its own and then apply the decision in Mallikarjun's case. But, in such circumstances, where disability was assessed by the court/Tribunal not based on any proven certificate it cannot be the basis for determining compensation in terms of the structure of compensation given in Mallikarnjun's case and in such instances the compensation would depend upon the permanent disability assessed by the Court/Tribunal. For all the reasons mentioned above, we are not inclined to accept the M.A.C.A.No.1953/2011 10 prayer of the appellant to grant compensation based on Mallikarjun's case. 8. We will now, consider the merits of the other contentions. The learned counsel for the appellant contended that the Tribunal went wrong in fixing Rs.1,500/- only as the monthly income of the appellant for calculation purpose. In support of the said contention, the learned counsel relied on a decision of the Apex Court in **Kishan Gopal and another v. Lala and others [(2014) 1 SCC 244]** . In that case there was a specific averment to the effect that the child concerned was assisting the parents in their agricultural operations. Since we have already declined to accept the contention of the appellant that he was a child on the day of the accident, we do not think that the said decision is having any relevance or bearing in this matter. Even then, taking note of the fact that the appellant was a student who crossed the age of 18 years and the year of the accident and further that he himself filed the claim petition, we are of the view that it is only proper to notionally fix his monthly income for calculation purpose as Rs.2,500/-. It is fixed accordingly. Though Ext.A9 was not a certificate issued by a Medical M.A.C.A.No.1953/2011 11 Board and that the doctor who issued the same was not examined before the Tribunal, we do not think it proper to ignore the assessment of the percentage of disability as 4% for calculation purpose by the Tribunal. On perusal of the judgment in the light of the rival pleadings and evidence on record, it is obvious that the multiplier was not correctly identified by the Tribunal. In the light of the schedule given in the decision of the Hon'ble Apex Court in **Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC)** , the multiplier to be applied in this case is '18' and not '16'. In the said circumstances, taking his monthly income as Rs.2,500/- and the percentage of disability as 4% and the multiplier as 18, the amount payable for permanent disability is to be reassessed following the same formula. On such calculation, the appellant would be entitled to get an amount of Rs.10,080/- additionally under that head. 9. Ext.A6 is the wound certificate and Ext.A7 is the discharge summary produced by the appellant before the Tribunal. They would go to show that he was admitted at West Fort Hospital, Thrissur on 16.04.2002 with lacerated wounds 2 x 2 x 1 cm. on forehead extending M.A.C.A.No.1953/2011 12 to frontal area vertically, and 2 x 1 x 0.5 cm. on occipital area and abrasions on forearm, upper arm and right side of face and loss of teeth. In CT scan it was revealed that he had fracture of mandible, fracture of frontal bone with involvement of left orbital plate and bilateral small right frontal EDH. The medical records would also reveal that he was subjected to craniotomy twice. In such circumstances, it is evident that being a student, at that point of time, it must have interrupted his studies besides adversely affecting the enjoyment of life. Taking into account those factors, we are inclined to grant an amount of Rs.20,000/- to the appellant. It is awarded. Taking note of the nature of injuries sustained by the appellant and the treatment underwent by him, we are of the view that he requires future treatment and that it is only proper to grant some amount towards future treatment which we fixed as Rs.10,000/-. It is awarded. The nature of the injuries would undoubtedly indicate that the dresses worn by him on the day of the accident must have damaged. Therefore, we are inclined to grant Rs.500/- towards damage to clothing over and above Rs.500/- granted by the Tribunal on that count. M.A.C.A.No.1953/2011 13 In the light of the discussion as above, the appellant is entitled to get an additional compensation of Rs.40,580/- which is rounded off to Rs.40,600/-. The said amount will carry interest @ 8% per annum from the date of petition till realization. The third respondent is directed to deposit the amount along with interest @ 8% within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 29/07/2016