Minor Aswathy M. Lenin v. Nila Sea Foods Private Ltd. and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941** ## **MACA.No.2555 OF 2010** **AGAINST THE AWARD IN OP(MV).No.1534/2005 DATED 15-09-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** **MINOR ASWATHY M.LENIN, AGED 10 YEARS, REP.BY HER NEXT FRIEND AND FATHER M.G.LENIN,, AGED 45 YEARS,S/O.GOPINATHAN, MUKKIL HOUSE,, SOUTH PO PANCHAYATH KINNAR, CHITTETH ROAD,, KUMBALAM PO, COCHIN 682 506.** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** ## **RESPONDENT/S:** **1 M/S.NILA SEA FOODS PRIVATE LTD. 2/137,PUDUR,PANDIAPURAM,TUTICORIN, TAMIL NADU, STATE 628 001. 2 E.SUBRAMANIANSO.ERULAPPAN 88A KOTHALAMPATTI,VILATHIKULAM,TUTICORIN,, TAMIL NADU STATE 628 001. (DELETED) (R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 20/2/19 IN IA 1/19) 3 UNITED INDIA INSURANCE COMPANY LTD YGC ROAD,TUTICORIN 628 001.** **R1 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2555 of 2010 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1534 of 2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 20.03.2005, at the age of 5 years, while she was travelling in an autorickshaw bearing registration No.KL-7/F-3226. At the place of accident, the autorickshaw was hit by a mini lorry bearing registration No.TN-69/B-3034 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, she sustained series injuries. Alleging that the accident occurred due to the rash and negligent driving of mini lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- under various heads, which was later amended to Rs.19,00,000/-. 2. Before the Tribunal, the respondents 1 and 2 remained absent and they were set ex parte. -3- MACA. No. 2555 of 2010 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the mini lorry involved in the accident; however, denying the negligence alleged against its driver. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A19 were marked on the side of the appellant/claimant. The document marked as Ext.X1 is medical records from Lakeshore Hospital, Ernakulam. Respondents have not chosen to adduce any oral or documentary evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of mini lorry by its driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.5,83,530/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with proportionate cost, and the 3[rd] respondent -4- MACA. No. 2555 of 2010 insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 9. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in -5- MACA. No. 2555 of 2010 mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 10. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; MACA. No. 2555 of 2010 -6- |Transportation|5,000| |---|---| |Damage to clothing|500| |Extra nourishment|5,000| |Treatment expenses|1,43,513| |Bystander's expenses|6,000 (50 x120)| |Pain and sufferings|40,000| |Loss of amenities|40,000| |Permanent disability|2,52,000 (2,000 x12x15x70%)| |Marriage prospects &|| |Disfigurement|40,000| |Future medical treatment|25,000| |------------------|| |Total|5,83,530| |===========|| 12. The accident occurred on 20.03.2005. At the time of accident, the appellant was a minor aged 5 years. The Tribunal took the monthly income notionally as Rs.2,000/-, for the purpose of awarding compensation under various heads. 13. By the order dated 26.02.2019, this Court directed the appellant to appear in person on 28.02.2019 for ascertaining whether she has any disability at present. Pursuant to that order, the appellant appeared in person. She has stated that she is studying in Government Maharajas College, Ernakulam, for 1[st] year B.A degree. There is loss of -7- MACA. No. 2555 of 2010 vision and physical disabilities. In the order dated 28.02.2019, this Court has recorded that the 3[rd] respondent insurer has no dispute with regard to the disability certified by the Medical Board and hence, further medical examination of the appellant is not necessary. 14. The document marked as Ext.A3 is the wound certificate; Ext.A4 is the discharge summary; Ext.A5 is the disability certificate; and Ext.A6 is the medical certificate. As evident from medical records, in the accident, the appellant sustained lacerated wound on frontal region; depressed fracture of frontal bone with contusion frontal lob and fracture root of orbit; fracture right humerus; brain matter oozhing out through the wound; lacerated wound on right arm; and injuries to right eyeball. The appellant had undergone inpatient treatment for a total period of 148 days, under different spells. Ext.A6 series of medical bills, which includes the advance payments covered by Ext.A15 series. After deducting advance payments, the Tribunal took only Rs.1,43,513/- as medical expenses. -8- MACA. No. 2555 of 2010 15. In Ext.A10 disability certificate, the Medical Board at the District Hospital, Ernakulam assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 70%. As per Ext.A10, the appellant is suffering from left hemiparesis and loss of vision of right eye. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board in Ext.A10, for the purpose of awarding compensation under various heads. 16. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right -9- MACA. No. 2555 of 2010 range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a notional monthly income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as -10- MACA. No. 2555 of 2010 she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court -11- MACA. No. 2555 of 2010 noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 17. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding -12- MACA. No. 2555 of 2010 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. ## 18. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC** **396]** , the Apex Court laid down the principles regarding payment of compensation for injuries sustained by children, resulting permanent disability. In the said decision, the Apex Court held that in the case of children suffering disability on account of motor accident, the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3,00,000/-; up to 60%, Rs.4,00,000/-; up to 90%, Rs.5,00,000/- and above 90%, it should be Rs.6,00,000/-. For permanent disability up to 10%, it should be Rs.1,00,000/-, unless there are exceptional circumstances to take a different yardstick. -13- MACA. No. 2555 of 2010 19. In **Mekala** , the accident was of the year 2005 and the the appellant before the Apex Court was a student of 11th standard, who was holding 1st rank in the school, who had an excellent career prospect. In the instant case, at the time of accident, the appellant was aged only 5 years. She sustained 70% permanent disability, as assessed in Ext.A10. Considering the facts and circumstances of the case on hand, in the light of the law laid down in **Mekala** , **Syed Sadiq** and **Master Mallikarjun** , the notional monthly income of the appellant, after adding 40% towards future prospects, in view of the law laid down by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC** **680]** , can be taken as Rs.4,000/- for the purpose of awarding disability compensation, in order to ensure that the appellant with 70% permanent disability is granted a sum of Rs.5,00,000/- as compensation under the head permanent disability. Therefore, the notional monthly income of the appellant for the purpose of awarding compensation under the head permanent disability is taken as Rs.4,000/-, after adding -14- MACA. No. 2555 of 2010 40% towards future prospects. Applying the multiplier of 15 applicable to the age group of the appellant and the percentage of the permanent disability as 70%, the compensation under this head is re-fixed as Rs.5,04,000/(4,000 x 12 x 15 x 70/100), resulting an additional compensation of **Rs.2,52,000/-** (5,04,000 - 2,52,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 148 days. The accident is of the year 2005. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards bystander expenses the Tribunal awarded a sum of Rs.6,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.5,000/-. The accident is of the year 2005 and the appellant had undergone inpatient -15- MACA. No. 2555 of 2010 treatment for 148 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.22,200/- (150 x 148), resulting an additional compensation of **Rs.16,200/-** (22,200 – 6,000). The compensation under the head extra nourishment is re-fixed as Rs.14,800/- (100 x 148), resulting an additional compensation of **Rs.9,800/-** (14,800 – 5,000). 22. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2005, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 23. Towards medical expenses, the Tribunal awarded a sum of Rs.1,43,513/-, covered by Ext.A6 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. -16- MACA. No. 2555 of 2010 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.40,000/-. 25. In **Govind Yadav v. New India Insurance Company Ltd. [(2011) 10 SCC 683]** , the Apex Court was dealing with the case of an unmarried person aged 24 years, who was working as helper. On account of the injuries sustained in the motor accident, his left leg was amputated above knee. Considering his age and also the fact that for the remaining life, he will suffer the trauma of not being able to do his normal work as helper, the Apex Court, in order to meet the ends of justice, granted a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to amputation of leg. 26. In the instant case, at the time of accident, the claimant was a minor aged 5 years. She sustained serious injuries as evident from Ext.A3 wound certificate, Ext.A4 discharge summary and Ext.A6 medical certificate. As evident from Ext.A10 disability certificate, she is suffering from left hemiparesis and loss of vision of right eye. On 28.02.2019, -17- MACA. No. 2555 of 2010 the appellant appeared in-person and this Court recorded the submission made by the learned Standing Counsel for the 3[rd] respondent insurer that the insurer has no dispute with regard to the disability certificate issued by the Medical Board and hence, further medical examination of the appellant is not necessary. Considering the fact that, on account of the injuries sustained in the accident, the appellant is suffering from left hemiparesis and loss of vision of right eye, this Court deem it appropriate to re-fix the compensation under the head pain and suffering as Rs.2,00,000/-, resulting an additional compensation of **Rs.1,60,000/-** (2,00,000 - 40,000). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.40,000/-. A further sum of Rs.40,000/- was awarded towards loss of marriage prospects and disfigurment. In Ext.A10 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 70%. As evident from Ext.A10 disability certificate, she is suffering from left hemiparesis and loss of vision of right eye. -18- MACA. No. 2555 of 2010 28. In **Govind Yadav [(2011) 10 SCC 683]** , the Apex Court was dealing with the case of an unmarried person aged 24 years, who was working as helper. On account of the injuries sustained in the motor accident, his left leg was amputated above knee. The loss of earning on account of the permanent disability was taken as 70%. Considering his age and also the fact that his marriage prospects have considerably reduced on account of amputation of left lower limb above knee, the Apex Court granted a sum of Rs.1,50,000/- under the head loss of amenities and enjoyment of life. 29. In the instant case, on account of the injuries sustained in the accident, at an age of 5 years, the appellant is suffering from left hemiparesis and loss of vision of right eye. Despite such disabilities, she is pursuing B.A. Degree in Government Maharaja's College, Ernakulam. Considering the fact that the marriage prospects and career prospects of the appellant have been considerably reduced on account of the injuries sustained in the accident and the resultant permanent -19- MACA. No. 2555 of 2010 disability, the appellant is granted a sum of Rs.2,00,000/under the head loss of amenities and enjoyment of life, marriage prospect and career prospects. A further sum of Rs.1,00,000/- is awarded towards disfiguration. Deducting Rs.40,000/- awarded by the Tribunal under the head loss of amenities and Rs.40,000/- awarded towards loss of marriage prospects and disfigurement, the appellant will be entitled for an additional compensation of **Rs.1,70,000/-** [(2,00,000 + 50,000) - (40,000 + 40,000)] under the above heads. 30. As compensation towards future treatment, the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of disfiguration on account of the injuries sustained in the accident, and also the disabilities noted in Ext.A10 disability certificate, the compensation under the head future treatment is re-fixed as Rs.75,000/-, resulting an additional compensation of **Rs.50,000/-** (75,000 – 25,000), which will carry interest only from the date of award, i.e., 15.09.2009. 31. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.6,58,250/-** -20- MACA. No. 2555 of 2010 (Rupees six lakhs fifty eight thousand two hundred and fifty only) [2,52,000 + 16,200 + 9,800 + 250 + 1,60,000 + 1,70,000 + 50,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding Rs.50,000/- granted under the head future treatment, which will carry interest only from the date of award, i.e., 15.09.2009. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellant/ claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant/claimant shall provide her Bank account details (attested copy of the relevant page of the Bank Passbook -21- MACA. No. 2555 of 2010 having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. All pending interlocutory applications in this appeal are closed. Sd/- **ANIL K.NARENDRAN JUDGE** das -22- MACA. No. 2555 of 2010 The Judgment dated 30.01.2020 in MACA. No.2555/2010 is corrected as per order dated 24.06.2020 in MACA. No.2555/2010 as follows:- - (i) The words and figures **“additional compensation of Rs.1,70,000/-** - **[(2,00,000 + 50,000) – (40,000 + 40,000)] under the above heads”** occurring in the last sentence of paragraph 29 on page 19 of the judgment is corrected as **“additional compensation of Rs.2,20,000/[(2,00,000 + 1,00,000) – (40,000 + 40,000)] under the above heads”** . - (ii) The words and figures **“additional compensation of Rs.6,58,250/(Rupees Six lakhs fifty eight thousand two hundred and fifty only) [2,52,000 + 16,200 + 9,800 + 250 + 1,60,000 + 1,70,000 + 50,000] in this appeal”** occurring in the first sentence of paragraph 31 on pages 19 and 20 of the judgment is corrected as **“additional compensation of Rs.7,08,250/- (Rupees Seven lakhs eight thousand two hundred and fifty only) [2,52,000 + 16,200 + 9,800 + 250 + 1,60 ,000 + 2,20,000 + 50,000] in this appeal”** . **Sd/-** **DEPUTY REGISTRAR**