MACA.No.3815 OF 2016(D) – United India Insurance Company Limited v Abdul Bashith (Minor) through his Guardian K. Khairunnissa

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **MACA.No.3815 OF 2016(D)** **AGAINST THE AWARD IN OP(MV)No.521 OF 2013 DATED 15.07.2016 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANT/3rd RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED, KANHANGAD, NOW REP. BY ITS REGIONAL MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/1st PETITIONER:** **ABDUL BASHITH [MINOR], S/O T.P.HASSEN, THEKKEPURAM HOUSE, POOCHAKKAD, KEEKAN P.O. PALLIKKARA VILLAGE, HOSDURG TALUK - 671 314, REP. BY HIS MOTHER, GUARDIAN K.C.KHAIRUNNISSA, THEKKEPURAM HOUSE, POOCHAKKAD, KEEKAN P.O. PALLIKKARA VILLAGE, HOSDURG TALUK- 671 314** **BY ADV. SRI.MAHESH V RAMAKRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3815 OF 2016(D)** **:2:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 25[th] day of June, 2020**_ The 3[rd] respondent-insurer in OP(MV) No.521/2013 of the Motor Accident Claims Tribunal, Kasaragod is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by the Award dated 15.07.2016, of the Tribunal. 2. OP(MV) No.521/2013 was filed by the respondent herein who was a minor aged 13 years at the time of filing the OP(MV), along with his mother, who was his next friend and guardian. In the OP(MV), it was alleged that the respondent, who was a minor boy, was knocked down by a **MACA.No.3815 OF 2016(D)** **:3:** motorcycle on 06.05.2012. The 1[st] respondent-rider of the motorcycle drove the vehicle in a rash and negligent manner. By the hit, the boy was thrown away from the road and sustained grievous injuries. He was taken to Manzoor Hospital, Kanhangad, but was immediately referred to Unity Health Complex, Mangalore. The respondent had to remain as in-patient for 86 days and had to undergo series of injuries. Even after the discharge, he was frequenting the hospital for treatment. 3. The respondent contended that he lost his memory and is unable to take any decision on his own. He had to be looked after by two bystanders. His mother could not continue her job as he always wanted her assistance. The appellant initially sought `20,00,000/- as compensation, which claim was later amended to `40,00,000/-. 4. The 1[st] respondent in OP(MV), the driver, appeared through counsel but did not defend the case. The 2[nd] respondent-owner of the offending motorcycle remained **MACA.No.3815 OF 2016(D)** **:4:** _ex-parte_ . The 3[rd] respondent-insurer/appellant herein admitted insurance cover, but controverted the reasons for accident. According to the appellant, the boy crossed the road disregarding the approaching vehicle which was in close proximity and it resulted in accident. 5. The respondent in the appeal (petitioner in OP(MV)) produced Exts.A1 to A5 documents. Disability certificate issued by the Government Medical College, Calicut was marked as Court Exhibit X1. 6. Appreciating the evidence on record, the Tribunal found that the driver was lacking care and caution and caused the accident. The Tribunal noted that as per Ext.X1, the disability is 85.67%. The respondent was produced in Tribunal. The Tribunal heard him and put questions to him. The Tribunal noted that his response was delayed and not of a normal boy of his age. He could walk on his own but his gait was found to be slow, unsteady and unsure. He stated that he is unable to write and use his left hand. The **MACA.No.3815 OF 2016(D)** **:5:** deformity of his right eye was apparent. There was also a depression on the right side of his forehead. 7. The Tribunal came to the conclusion that the young boy may take years to be somewhat normal. The Tribunal awarded a compensation of `34,02,700/- to the respondent, under the following heads: |**Sl.**<br>**No.**|**Head of account**|**Amount**<br>**claimed**<br>**(in**`**)**|**Amount**<br>**awarded**<br>**(in**`**)**|**Basis – vital**<br>**details in a**<br>**nut-shell**| |---|---|---|---|---| |1|Loss of earnings<br>Partial loss of earnings|81,000<br>--|–<br>--|As per para 13<br>of the Award| |2|Transportation to Hospital|5,000|25,000|-do-| |3|Extra nourishment|5,000|10,000|| |4|Damage to clothing and articles|1,000|500|-do-| |5|Loss of expectation, amenities<br>and conveniences of life|--|10,00,000|-do-| |6|Medicines & Hospital bills &<br>Bystanders Expense|11,00,000|10,50,000|As per para 13<br>of the Award| |7|Nursing & Attender Expenses|--|2,00,000|-do-| |8|Future treatment|--|1,00,000|-do-| |10|Compensation for continuing or<br>permanent disability, pain and<br>suffering|15,00,000|--|| |11|Compensation for loss of<br>earning capacity & future<br>enjoyment of life|15,00,000|10,00,000|-do-| ||**Total**|`41**,92,000/-**<br>(Restricted to<br>`40,00,000)|**₹34,02,700/-**|| **MACA.No.3815 OF 2016(D)** **:6:** The Tribunal awarded interest at the rate of 9% per annum and since policy is admitted, directed the appellant-insurer to deposit the Award amount with interest. The appellant is aggrieved by the high amount of compensation awarded. 8. The learned Standing Counsel for the appellant argued that the amount awarded by the Tribunal towards compensation to the minor, is excessive in view of the judgment of the Hon'ble Apex Court in _**Mallikarjun v. National Insurance Co. Ltd.** [(2014) 14 SCC 396]_ . More specifically, the Tribunal has granted ₹10 lakhs towards loss of expectation, amenities and conveniences of life, which is exorbitant. The Tribunal further granted ₹2 lakhs towards nursing and attender expenses for which no claim was made by the respondent. The amount of ₹1 lakh granted towards future treatment is also unwarranted. The Tribunal further granted ₹10 lakhs towards compensation for loss of earning capacity and future enjoyment of life, which goes against the judgment of the Apex Court in _**Mallikarjun** (supra)._ **MACA.No.3815 OF 2016(D)** **:7:** Therefore, the compensation amount awarded by the Tribunal is liable to be drastically reduced, contended the learned Standing Counsel for the appellant. 9. The learned counsel for the respondent, on the other hand, pointed out that the guidelines laid down by the Apex Court in _**Mallikarjun** (supra)_ on compensation payable to death or injury of minors _,_ is to be applied taking into account facts and circumstances of each case. The Apex Court itself has observed therein that those are general guidelines to be followed. Therefore, in exceptional circumstances, Claims Tribunals and High Courts can depart from the guidelines given in _**Mallikarjun** (supra)._ 10. The learned counsel for the respondent pointed out that this is a case where a minor has suffered injuries to putamen located at the base of the fore-brain. Damage has been suffered by the respondent to globus pallidus which is a structure in the brain involved in the regulation of voluntary movements. The injury suffered is therefore lasting and **MACA.No.3815 OF 2016(D)** **:8:** would affect the respondent during his entire life. The Tribunal properly appreciated these facts and granted just and fair compensation which is not liable to be interfered with. 11. I have heard the learned Standing Counsel for the appellant and counsel for the respondent. 12. As regards compensation payable to minors involved in road traffic accidents, the Hon'ble Apex Court in _**Mallikarjun** (supra)_ , held that appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be as follows:- |Disability up to 10%|₹1,00,000/-| |---|---| |above 10% and up to 30%|<br>₹3,00,000/-| |to the whole body|| |up to 60%|₹4,00,000/-| |up to 90%|₹5,00,000/-| |above 90%|₹6,00,000/-| The Apex Court prescribed the said structure of **MACA.No.3815 OF 2016(D)** **:9:** compensation with a view to bring uniformity in socioeconomic issues. The Apex Court considered the issue again in _**Rajesh and others v. Rajbir Singh and others** [2013 (3) KLT 89]_ and held that though under normal circumstances, in respect of claims for compensation, computation of compensation shall be done strictly in accordance with the structure of compensation formulated in _**Mallikarjun** (supra)_ , in exceptional circumstances a different yardstick can be adopted. But, even while adopting a different yardstick, such exceptional circumstances compelling adoption of a different yardstick should be specifically stated in black and white, in the judgment concerned. 13. A Division Bench of this Court had also occasion to consider the issue. A Division Bench of this Court also held in _**ICICI Lombard General Insurance Co. Ltd. v. Amith Varghese** [2017 (2) KLT 8]_ that a deviation from the structure of compensation formulated in _**Mallikarjun** (supra)_ **MACA.No.3815 OF 2016(D)** **:10:** is permissible only because it is permitted thereunder and that adoption of a different yardstick is possible and permissible only in exceptional circumstances. 14. Therefore, this Court has to consider whether there exist any exceptional circumstances in the case of the respondent's claim, to depart from the guidelines provided in . _**Mallikarjun** (supra)_ 15. A perusal of Ext.A3 wound certificate would show that the appellant has suffered multiple abrasions over left side of the face and over the chest, cerebral concussion with cerebral oedima and contusion of left putamen, globus pallidus and right frontal lob of the brain, hemiparesis of left side of the body (weakness) grade 1/5 and multiple abrasions over the left side of the buttock, leg, ankle and left shoulder. The respondent had to be hospitalised for 86 days. Among the afore injuries, those to the left putamen and globus pallidus have serious consequences. 16. The putamen is a structure located within brain **MACA.No.3815 OF 2016(D)** **:11:** and it prepares and aids in movement of limbs. Damage to globus pallidus will cause movement disorders in human beings as its regulatory function will be impaired. The Medical Board constituted by the Medical College Hospital, Kozhikode has found that the respondent is having severe deysaithria, hemiparesis, mild mental retardation, increased frequency of bladder and mild ataxia. The Board fixed over all disability of the respondent as 85.67%. 17. The respondent was produced before the Tribunal. The Tribunal put questions to the respondent and found that his response to the questions where delayed and not normal for a boy of his age. Though the respondent could walk on his own, his gait was found to be slow, unsteady and unsure. The respondent stated before the Tribunal that he is unable to write and use his left hand. The respondent's right eye also had deformity. There was also depression on the right side of his forehead. From the evidence on record, it is established that the respondent **MACA.No.3815 OF 2016(D)** **:12:** cannot lead a normal life expected of a normal human being. The respondent has suffered permanent disability and has also incurred mild mental retardation, which would in all likelihood render him unfit for any normal employment. It is under such circumstances that the Tribunal has concluded that the respondent will be dependent on others for the rest of his life. Under these circumstances, the case of the respondent need necessarily to be treated as an exceptional one. 18. The Tribunal has granted only nominal/actual amounts towards compensation for transport to hospital, extra nourishment, damage to clothing and articles, etc. The Tribunal has granted ₹10 lakhs towards loss of expectation, amenities and conveniences of life, which amount is fair in the circumstances of the case. The amount of ₹10,67,200/awarded by the Tribunal is towards medicines, hospital bills and bystander expenses, which are all amounts actually expended for the respondent. **MACA.No.3815 OF 2016(D)** **:13:** 19. Going by the evidence on record, it is clear that the respondent would require nursing, attender and treatment in future also. Therefore, the amount of ₹2 lakhs awarded for nursing and attender expenses and ₹1 lakh awarded towards future treatment can only be said to be moderate. The Tribunal has not granted any compensation for continuing or permanent disability, pain and suffering, towards which ₹15 lakhs was claimed by the respondent. On the other hand, the Tribunal awarded ₹10 lakhs towards compensation for loss of earning capacity and future enjoyment of life. Since the respondent was of the age of 13 at the time of accident and since the respondent cannot lead a normal life in future opting for normal avocations available to persons like him, the award of ₹10 lakhs under the head cannot be treated as unreasonable on any count, especially since the Tribunal has not granted any compensation towards permanent disability, pain and suffering. 20. In the judgment in _**V. Mekala v. M. Malathi and**_ **MACA.No.3815 OF 2016(D)** **:14:** _**another** [(2014) 11 SCC 178]_ , the Apex Court held that the claimant is entitled to a compensation of ₹30,93,000/- in respect of serious injuries suffered by a Plus One student. In _**Jagdish v. Mohan and others** [2018 (3) SCALE 615]_ , in respect of serious injuries sustained by a 24 year old man, the Apex Court awarded ₹25 lakhs. Though it was a case of amputation of both hands, as far as loss of earning capacity is concerned, the respondent herein stands on the same footing. In _**Basid (Minor) represented by mother Mymoona v. Sanu K.C. and another** [ILR 2018 (2) Kerala 291]_ , a Division Bench of this Court awarded an amount of ₹35,000/- as compensation to the minor claimant who was condemned to a vegetative state consequent to the accident, and in addition, ₹15 lakhs was awarded to mother of the claimant. Going by the judgments of the Hon'ble Apex Court and this Court in the matter of compensation to minors, who are rendered permanently disabled due to road traffic accidents, this Court is of the opinion that the amount of **MACA.No.3815 OF 2016(D)** **:15:** ₹34,02,700/- granted as compensation by the Tribunal, is just and adequate. In the circumstances, MACA filed by the appellant fails and it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/23/06/2020