MACA Nos. 2259/2008, 2226/2008 & 2227/2008 (FEIA Francis @ Anna Feia; K.J. Francis; Elza Feby K.F. @ Febi Francis v Saraswathy; Subhas; United India Insurance Co. Ltd.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** ## **MACA.No. 2226 of 2008** **AGAINST THE AWARD IN OPMV 324/1999 of M.A.C.T.,ERNAKULAM DATED** **11-08-2006** ## **APPELLANT/S:** **FEIA FRANCIS @ ANNA FEIA, AGED 20 YEARS D/O. FRANCIS, KANJANAPPILLY HOUSE, WEST OF TEMPLE, PONNURUNNI, VYTTILA P.O., COCHIN - 19.** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENT/S:** |**1**|**SARASWATHY,**| |---|---| ||**QUARTERS NO.534/9, KARIMUGAL, AMBALAMEDU P.O.,**| |**2**|**SUBHAS,**| ||**FACT COLONY, AMBALAMEDU P.O.**| |**3**|**UNITED INDIA INSURANCE CO.LTD.,**| ||**REP. BY ITS MANAGER, M.T.P.C. OFFICE,**| ||**VETTUKATTIL BUILDING, M.G.ROAD, COCHIN - 16.**| ||**BY ADV. SRI.JOHN JOSEPH VETTIKAD**| ## **OTHER PRESENT:** **SRI JOHN JOSEPH VETTIKKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2018, ALONG WITH MACA.2259/2008, MACA.2227/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.2259, 2226 &2227/2008 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** **MACA.No. 2259 of 2008** **AGAINST THE AWARD IN OPMV 329/1999 of M.A.C.T.,ERNAKULAM DATED 11-08-2006** ## **APPELLANT/S:** **K.J. FRANCIS, AGED 51 YEARS S/O JACOB, KANJANAPPILLY HOUSE, WEST OF TEMPLE, PONURUNNI, VYTTILA.P.O, COCHIN-19.** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENT/S:** - **1 SARASWATHY, QUARTERS NO 534/9, KARIMUGAL, AMBALAMEDU P.O.** - **2 SUBHAS,** **FACT COLONY, AMBALAMEDU P.O.** - **3 UNITED INDIA INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, M.T.P.C.OFFICE, VETTUKATTIL BUILDING, M.G.ROAD, COCHIN-16.** **BY ADV. SMT.K.SHERIN MOHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2018, ALONG WITH MACA.2227/2008, MACA.2226/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.2259, 2226 &2227/2008 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** **MACA.No. 2227 of 2008** **AGAINST THE AWARD IN OPMV 331/1999 of M.A.C.T.,ERNAKULAM DATED 11-08-2006** ## **APPELLANT/S:** **ELZA FEBY K.F. @ FEBI FRANCIS, AGED 22 YEARS D/O. K.J. FRANCIS, KANJANAPPILLY HOUSE, WEST OF TEMPLE, PONNURUNNI, VYTTILA P.O., COCHIN - 19.** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENT/S:** - **1 SARASWATHY, QUARTERS NO.534/9, KARIMUGAL, AMBALAMEDU P.O.** - **2 SUBHASH, FACT COLONY, AMBALAMEDU P.O.** - **3 UNITED INDIA INSURANCE CO. LTD., REP. BY ITS MANAGER, M.T.P.C. OFFICE, VETTUKATTIL BUILDING, M.G.ROAD, COCHIN - 16.** ## **BY ADV. SRI.P.MURALEEDHARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2018, ALONG WITH MACA.2259/2008, MACA.2226/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.2259, 2226 &2227/2008 4 ## **MACA NO.2259/2008, 2226/2008 & 2227/2008 J U D G M E N T** **The above appeals are filed by a person who was riding a motor bike and two minor children who were accompanying him in the motor bike. On 04.09.1998 the motor bike in which the appellants were traveling collided with a jeep and all the three appellants suffered grievous injuries for which claims for compensation were filed before the Tribunal. The Tribunal found the jeep driver to be negligent. Though the offending vehicle was covered by a valid insurance policy, the driver of the jeep did not have a licence. Before the Tribunal the registered owner and driver of the offending vehicle did not appear and they were declared exparte. In the present appeals also they were issued with notice. It is seen from MACA No.2259/2008 that in the delay petition the respondents were served and the delay was condoned,** **but notices to the 1[st] and 2[nd] respondents were** MACA Nos.2259, 2226 &2227/2008 5 **returned with the endorsement respectively of “no such addressee” and “not known”. In MACA 2226/2008 and in 2227/2008 in the delay petition notice to** **1[st] respondent was returned as “refused” and 2[nd] respondent as “unclaimed”. However, after the delay was condoned when the case was admitted, notices issued were returned with the endorsement as indicated in the first case. Considering the totality of the circumstances, this Court is of the opinion that the respondents 1 and 2 are deliberately evading notice. In such circumstance, service to respondents 1 and 2 are declared.** **2. The claim of the appellants is for enhancement which has to be considered separately. MACA No.2259/2008** **3. The father who was riding the bike was 42 years old and was working as a forklift driver in Cochin Port Trust. The wound certificate indicates the following injuries.** **“10x0.5 cm.lacerated wound over (L) fronto** MACA Nos.2259, 2226 &2227/2008 6 **parietal region with severe bleeding and tenderrness over (L) arm.”** **The entire medical bills were reimbursed by the Company in which the appellant was working. Hence the Tribunal did not award any compensation with respect to the medical expenses. The appellantfather had taken 33 days commuted leave and 9 days earned leave between 05.09.1998 to 16.09.1990 on medical grounds subsequent to the road accident. The Tribunal had awarded a total compensation of Rs.38,350/-.** **4. The learned Counsel submits that the appellant has suffered disability of 12% and hence there should be compensation awarded for loss of future prospects. However, there is no claim that the appellant lost his employment or suffered a reversion from the post in which he was employed at the time of the accident. In such circumstances, it cannot be assumed that there is any loss of future prospects. The learned Counsel** MACA Nos.2259, 2226 &2227/2008 7 **would then submit that the appellant had suffered disfigurement of his face and the disability would also affect the generation of income during his retirement. It has to be noticed that the appellant being a 42 year old person, the multiplier applied if at all would be 14 and he would be still in employment at the age of 56. Hence there can be no future prospects assessed after the age of retirement. As to disfigurement, the Tribunal has awarded Rs.5000/-. This has to be enhanced to Rs.10000/-. For pain and suffering also, it is only appropriate that Rs.10000/- be granted. Hence there shall be an enhancement of Rs.9000/- insofar as the appellant in MACA No.2259/2008 is concerned.** **MACA 2226/2008** **5. The facts with respect to the accident are identical. The appellant suffered the following injuries:** **“1. Type III C open fracture both bones** MACA Nos.2259, 2226 &2227/2008 8 **(L) leg lower third with bone loss 2. Pain and bleeding of left leg. 3.Lacerated wound 15x10x3cm on the posteromedial aspect of middle 3[rd] of left leg.”** **The treatment and injury suffered by the appellant as seen from the order of the Tribunal is as follows:** **Wound debridement was done and external fixator was applied. Free flap done for the defect on the left leg by Plastic Surgeon. After removing external fixator on 16.10.1998 POP cast was applied and the patient was discharged on 22.10.1998 with an advice for non weight bearing axillary crutch walking and to report for review on 7.11.1998. The diagnosis done on 7.11.1998 showed early bridging. After one month petitioner was again admitted for two days in the hospital and after removing POP cast PTB cast was applied. Clinical fracture was found united. X-ray also showed early bridging. Thereafter on** MACA Nos.2259, 2226 &2227/2008 9 **16.1.1999 POP cast was removed and she was advised to undergo physiotherapy. Again the patient was reviewed on 28.01.1999 and the petitioner was found asymptomatic. Ext. A11 certificate issued from the hospital would show that the patient was admitted in the hospital as inpatient on 19.04.2004 due to bulky flap and was discharged on 22.04.2004. The total treatment expenses as per Ext.A5 series come to Rs.56,233.40 and Rs.6888.81 as per Ext.A6 series.”** **The appellant a 11 year old girl was subjected to in patient treatment for 52 days. The appellant has suffered 15% disability hence the following enhancement is granted following the decision in** _**Master Mallikarjun v. Divisional Manager, National Insurance Company Ltd. [(2013) 3 KLJ 815]**_ **. Going by** _**Master Mallikarjun**_ **, a minor child having 10 to 30% disability would be entitled to a lumpsum compensation of Rs.3,00,000/- in addition to the medical expenses. Hence the appellant would be** MACA Nos.2259, 2226 &2227/2008 10 |**entitled to Rs.3,00,000/- + medical expenses of**|**entitled to Rs.3,00,000/- + medical expenses of**| |---|---| |**19,166/- as granted by the Tribunal. In addition to**|| |**the said award, there can be an enhancement with**|| |**respect**<br>**to**<br>**transportation,**|**hospitalisation,**| |**attendant expenses, extra nourishment and damage to**|| |**clothing. The compensation for the injured hence**|| |**would be the following:**|| |**1. Disability compensation**|**300000**| |**2. Medical expenses**|**19166**| |**2. Discomfort inconvenience and**|| |**loss of earnings to the parents**|| |**during the period of hospitalisation 25000**|| |**3. Medical and incidental expenses**|| |**during the period of hospitalisation**|| |**25000**|| |**4. Future medical expenses for**|| |**correction of the mal union**|| |**of fracture and incidental**|| |**expenses for such treatment**|**25000**| |**Total**|**394166**| |**MACA 2227/2008**|| |**6. The appellant is a 13**|**year old girl at**| |**the time of the accident and **|**sustained the**| |**following injuries:**|| MACA Nos.2259, 2226 &2227/2008 11 ## **1. Bleeding from right ear** ## **2. Head injury** **3. Bogginess with haematoma on the right occipito parietal region,** **4. Contusion and Type III B Fracture (L) femur, thin left fronto tempero parietal subdural haematoma and oblique fracture through parieto mastoid involving tegmen timpani, with possible dirruption of Ossicular chain.** ## **5. Type III B open fracture left femur,** **6. Traumatic performation of (R) tympanic membrane.** **She has undergone the following treatment.** - **“She sustained Type III B open fracture** **left femur, severe head injury and traumatic perforation of (R) tympanic membrane. Pursuant to the accident the petitioner was admitted in the Medical Trust Hospital on 04.09.1998 and** MACA Nos.2259, 2226 &2227/2008 12 **discharged on the debridement of wound over (L) thigh and internal fixation of fracture femur with DCP were done under** **G.A. She was re-admitted on 13.05.1999 with implant failure and angulation at the fracture site. Thereafter on the next day plates were removed and K nailing were done under G.A. The patient was discharged on 24.05.1999 showed early sound union. She was** **discharged with an advice of restricted activity.”** **7. As was noticed earlier** _**Master Mallikarjun(supra)**_ **directed a compensation of Rs.3,00,000/-for disability between 10% to 30%. The Hon'ble Supreme Court has also observed that if there are exceptional circumstances, a different yardstick can be taken. In the present case, the 11 year old who suffered 15% disability was granted Rs.3,00,000/- as compensation. Herein is a case** MACA Nos.2259, 2226 &2227/2008 13 |**where the sister who was 13 years old**|**had suffered**| |---|---| |**30% disability and disfigurement of face also. In**|| |**such circumstances, it is only proper that the**|| |**compensation to the appellant be enhanced and it**|| |**shall be fixed at Rs.5,00,000/-. **|**In such**| |**circumstances, the following enhancement shall be**|| |**granted.**|| |**1.Disability compensation**<br>|**5,00,000**| |**2. Discomfort inconvenience and**|| |**loss of earnings to the parents**|| |**during the period of hospitalisation **|**25,000**| |**3. Medical and incidental expenses**|| |**during the period of hospitalisation**|| |**25,000**|| |**4. Future medical expenses for**|| |**correction of the mal union**|| |**of fracture and incidental**|| |**expenses for such treatment**<br>|**25,000**| |**5. Medical expenses**|**35,000**| |**Total**<br>|**6,10,000**| |**8. The appeals are allowed with the above**|| |**compensation which shall be paid after deducting**|| |**what has been already paid within a period of two**|| |**months from the date of receipt of a certified copy**|| 14 MACA Nos.2259, 2226 &2227/2008 **of this judgment, with interest and cost if any as directed by the Tribunal. The Insurance Company would have the remedy to recover the amounts so paid from the registered owner of the vehicle. There is delay caused in the filing of appealsMACA 2259/2008-576days, MACA 2226/2008-576 days and MACA 2227/2008-606 days. The interest shall not run during the delay caused as per the earlier order of the Division Bench in the instant appeals.** Sd/- **jma** **K. VINOD CHANDRAN, Judge**