MACA Nos. 1703 of 2012 & 1399 of 2012 (High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945** ## **MACA NO. 1703 OF 2012** **OPMV NO.247 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **KASARAGOD** ## **APPELLANT/PETITIONER:** **REMANI.V.K AGED 44 YEARS** **W/O.K.NARAYANAN, R/AT.PAYYANGANAM HOUSE, KUTTIKOLE P.O., KAARAGOD TALUK AND DISTRICT. BY ADV SRI.I.V.PRAMOD** ## **RESPONDENTS/RESPONDENTS:** - **1 PRASANNAN S/O.RAJU.K.K., KALATHUR, PLACHIKKARARA P.O., THALIPARAMBA, KANNUR DISTRICT, 670 533.** - **2 THANKAM BALAKRISHNAN W/O.BALAKRISHNAN, "ROHINI", P.O.PERINGOM, PAYYANNUR, KANNUR DISTRICT-670 354.** - **3 UNITED INDIA INSURANCE COMPANY LIMITED UNITED INDIA INSURANCE COMPANY LIMITED, 2ND FLOOR, NITHYANANDA (LIC) BUILDING, KOTTACHERY, KANHANGAD-671315.** **BY ADV UNNI. K.K. (EZHUMATTOOR)** **ADV THOMAS MATHEW NELLIMOOTTIL- R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.02.2024, ALONG WITH MACA.1399/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1703 & 1399 of 2012 : 2 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 MACA NO. 1399 OF 2012** **OPMV NO.246 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **KASARAGOD** ## **APPELLANT/PETITIONER:** **SHYAMILI V. AGED 19 YEARS, D/O.BALACHANDRAN NAIR.A., PALLUNCHI,P.O.KUTTIKOLE, KASARAGOD DISTRICT. BY ADV SRI.I.V.PRAMOD** ## **RESPONDENTS/RESPONDENTS:** - **1 PRASANNAN S/O.RAJU K.K., KALATHUR, PLACHIKKARA P.O.,THALIPARAMBA, KANNUR DISTRICT 670533.** - **2 THANKAM BALAKRISHNAN, W/O.BALAKRISHNAN, "ROHINI", P.O.PERINGOM,PAYYANNUR, KANNUR DISTRICT 670 354.** - **3 THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED, 2ND FLOOR,NITHYANANDA (LIC) BUILDING, KOTTACHERY, KANHANGAD671315.** **ADV THOMAS MATHEW NELLIMOOTTIL- R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.02.2024, ALONG WITH MACA.1703/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1703 & 1399 of 2012 : 3 : ## **JUDGMENT** Both these appeals are arising from a common award passed in OP(MV) Nos.246/2007 and 247/2007 on the files of the Motor Accident Claims Tribunal, Kasaragod. 2. The said claim petitions were submitted by the respective claimants seeking compensation for the injuries sustained to them in a motor accident that occurred on 24.01.2007. According to them, the accident occurred, when the 1[st] petitioner in OP(MV) 246/2007 along with the petitioner in OP(MV) No.247/2007 was travelling in a tourist bus bearing Registration No.KL 09J 9484, the said vehicle hit a tree standing on the side of the public road, due to the rash and negligent driving of the vehicle driven by the 1[st] respondent. Due to the impact, both persons sustained grievous injuries. Immediately thereafter, the petitioners were taken to Pariyaram Medical College Hospital and the petitioner in OP(MV) No.246/2007 was treated as an inpatient for 17 days whereas the petitioner in OP(MV) No.247/2007 had undergone inpatient treatment for a period of 24 days. The claim petitions were submitted in such M.A.C.A. No.1703 & 1399 of 2012 : 4 : circumstances. 3. The 1[st] and the 2[nd] respondents, the driver and owner of the bus did not file any written statement. The 3[rd] respondent/Insurer of the bus filed a written statement admitting the coverage of the policy, but they denied the compensation on various grounds. The quantum of compensation claimed by the respective claimants was also disputed by them. Both the claim petitioners were tried jointly and the evidence in the said claim petitions consists of Exts.A1 to A13 and as court exhibits X1 and X2 were marked. 4. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the 1[st] respondent in driving the bus and being the insurer, the 3[rd] respondent was held liable to pay the compensation. As a quantum of compensation, an amount of Rs.2,08,550/- was fixed in OP(MV) No.246/2007 and Rs.74,175/- was fixed in OP(MV) No.247/2007. The said amounts were directed to be deposited by the 3[rd] respondent with interest at the rate of 8% per annum from the date of petition till realisation. MACA No.1399/2012 is filed by the petitioner in OP(MV) No.246/2007 whereas MACA No.1703/2012 M.A.C.A. No.1703 & 1399 of 2012 : 5 : is filed by the petitioner in OP(MV) No.247/2007, seeking enhancement of compensation. 5. Heard Sri. I.V. Pramod, the learned counsel appearing for the appellants in both appeals, Sri. Thomas Mathew Nellimoottil, the learned counsel appearing for the 3[rd] respondent in MACA No.1399/2012 and Sri. Unni K.K., the learned counsel appearing for the 3[rd] respondent in MACA No.1703/2012. 6. The only issue involved in both these cases relates to the quantum of compensation. The said aspects are dealt with in the following manner: ## **MACA No.1399/2012 arising from OP(MV) No.246/2007** 7. Here in this case, the claim petition was submitted seeking compensation for the injuries sustained by the appellant, who was the 1[st] petitioner in the claim petition. At the relevant time, the appellant was a minor aged 14 years. As per Ext.X1 which is the disability certificate issued by the Medical Board, she was found to have sustained physical disability to the extent of 35%. The tribunal calculated the compensation under various heads and awarded a total amount of Rs.2,08,550/-. 8. As regards the requirement of enhancement of M.A.C.A. No.1703 & 1399 of 2012 : 6 : compensation it is to be noted that, the compensation to be awarded for injuries in the case of a minor was elaborately considered by the Hon’ble Supreme Court in **Master Mallikarjun v. Divisional Manager, The National Insurance Co.Ltd. and another [2014 (14) SCC 396]** wherein certain guidelines were formulated for assessment of compensation for disability, taking note of the extent of disability suffered by the minor victim. As per the same, for the minor who suffered disability to the extent of 30% to 60%, a lumpsum compensation of Rs.4,00,000/- has been fixed along with the actual expenses. In this case, the said amount can be accepted and therefore, the appellant is held to be entitled to an amount of Rs.4,00,000/- as compensation, along with the actual expenses incurred by her. When coming to the question of actual expenses, it can be seen that she had incurred medical expenses to the tune of Rs.57,050/-, transportation expenses of Rs.1,000/-, damage to clothing of Rs.500/- and an amount of Rs.2,000/- towards bystander expenses. Thus, the total compensation is determined as Rs.4,60,550/[400000+57050+1000+500+2000]. M.A.C.A. No.1703 & 1399 of 2012 : 7 : ## **MACA No.1703/2012 arising from OP|(MV) No.247/2007.** 9. This is a case in which the claim was submitted by the appellant, who was aged 38 years, at the time of the accident. She claimed to be a Hindi teacher, with a monthly income of Rs.4,000/-. However, no documents to substantiate the monthly income have been produced and similarly, no documents to show the leave which she availed consequent to the injuries are also produced. Despite the same, the tribunal granted a compensation of Rs.12,000/- towards loss of earnings which was calculated at the rate of Rs.3,000/- per month for a period of four months. Considering the fact that the accident in this case occurred in the year 2007, I am of the view that, Rs.4,000/- can be accepted as the monthly income and therefore an additional amount of Rs.4,000/- is awarded towards loss of earning. The amount awarded under pain and suffering by the tribunal was Rs.15,000/-. The injuries sustained by the appellant are as follows: “1. Fracture of right sphenoid Sirius. 2. Stellate-shaped laceration of 4 cm in the right side to the outer canthi of eye.” 10. Considering the nature of injuries, a further sum of M.A.C.A. No.1703 & 1399 of 2012 : 8 : Rs.5,000/- is awarded towards pain and suffering. Similarly, taking note of the difficulties she might have suffered consequent to the injuries, a further sum of Rs.5,000/- is awarded towards loss of amenities as well, in view of the fact that Rs.10,000/- is awarded by the tribunal under this head appears to be on the lower side. Similarly towards transportation, the amount awarded was Rs.1,000/- whereas it is discernible from the records that, she availed treatment at Pariyaram Medical College even though she was a native of Kasaragod District. Therefore, a further sum of Rs.1,000/- is awarded towards transportation expenses. Thus the total additional compensation is determined as Rs.15,000/(4000+5000+5000+1000). In the result, both these appeals are disposed of with the following orders: - (1) OP(MV) No.246/2007 passed by the Motor Accident Claims Tribunal, Kasaragod on 28.11.2011 is hereby modified by reassessing the compensation as Rs.4,60,550/- (Rupees four lakhs sixty thousand five hundred and fifty only) and the 3[rd] respondent shall deposit the M.A.C.A. No.1703 & 1399 of 2012 : 9 : said amount along with interest at the rate as ordered by the tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment after adjusting the amount already deposit. - (2) The award dated 28.11.2011 in OP(MV) No.247/2007 passed by the Motor Accident Claims Tribunal, Kasaragod is hereby modified by granting an additional compensation of Rs.15,000/- (Rupees fifteen thousand only) which shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. - (3) It is further ordered that the claimants shall furnish the details of the PAN card, Aadhar card and bank details to enable the 3[rd] respondent to make the deposit as ordered above, within a period of two months from the M.A.C.A. No.1703 & 1399 of 2012 : 10 : date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd