Minor Muhammed Faris (through father Riyas K.) v. Satheesh Kumar V.K., Manoharan A., United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944** ## **MACA NO. 2185 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 712/2011 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL KOZHIKODE** ## **APPELLANT/PETITIONER:** **MINOR MUHAMMED FARIS AGED 6 YEARS, REPRESENTED BY HIS NEXT FRIEND AND FATHER RIYAS K., AGED 33 YEARS, S/O. SAIDALAVI KOYA, 114B, KAKKANAKATH HOUSE, KOLATHARA P.O., KOZHIKODE 673 655 BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** ## **RESPONDENTS/RESPONDENTS:** **1 SATHEESH KUMAR V.K.** **S/O. PANGU, PUDUSSERY HOUSE, POST PULIKKAL, MALAPPURAM DISTRICT 676 505 2 MANOHARAN A., PADMALAYAM HOUSE, PULIKKAL POST, MALAPPURAM DISTRICT PIN 676 505** **3 UNITED INDIA INSURANCE COMPANY LTD., WHITE LINE BUILDING, KALLAI ROAD, KOZHIKODE 673 003 BY ADV SRI.K.SANDESH RAJA** ## **OTHER PRESENT:** ## **SRI. K. SANDESH RAJA-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2185 of 2012 2 ## **JUDGMENT** The appellant (minor) is the claimant in O.P. (M.V.)No.712/2011 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode (in short, the Tribunal). Appellant is represented by his father. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming compensation of Rs.1,50,000/- for the injury sustained by the appellant/claimant in a motor accident occurred on 12.02.2011 by hit with a motorcycle bearing Reg.No.KL-10-P-6427 at Vayal Rail Cut Road. He was a pedestrian. 2. It is alleged that the accident happened due to the rash and negligent riding of the motorcycle by the first respondent, the owner cum rider. Insurance policy of the offending vehicle is standing in the name of second respondent and third respondent is the insurer. MACA No.2185 of 2012 3 3. Respondents filed written statement denying the negligence and rashness on the part of the first respondent and attributed negligence against the claimant himself. Third respondent admitted the policy coverage with respect to the offending vehicle. 4. On the side of the appellant/claimant, Exts.A1 to A10 series were marked. There was no oral evidence from either side. 5. The Tribunal, on evaluating the pleadings as well as the documents produced from the side of the appellant/claimant, awarded a total compensation of Rs.69,545/- and third respondent was directed to indemnify the insured. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellant/claimant (hereinafter be referred as the claimant) approaches this Court on various grounds stated in the memorandum of appeal. 7. Since the third respondent admitted the policy MACA No.2185 of 2012 4 coverage with respect to the offending vehicle, notice as against respondents 1 and 2 was dispensed with. 8. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the third respondent, insurer. Lower court records were called for and perused. 9. According to the learned counsel for the claimant, the victim was a minor boy, aged 4 years. He sustained very serious injuries. But only a meagre amount has been awarded by the Tribunal under various heads. Hence he seeks for enhancement of compensation on all heads. 10. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded and no enhancement is required under any of the heads. 11. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads MACA No.2185 of 2012 5 pecuniary damages (special damages) and non-pecuniary damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. The general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988, makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the MACA No.2185 of 2012 6 accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 12. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary damages (general damages). 13. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. MACA No.2185 of 2012 7 14. Ext.A2, copy of the wound certificate, would show that immediately after the accident the claimant was taken to District Co-operative Hospital, Kozhikode and the injuries noted are lacerated wound left ankle and foot area, raw area about 8x4 cm. Exposed tendon, bone exposed, tibialis anterior tendon injury. Open subtalar joint. Ext.A6, discharge summary issued from the same hospital would prove that he has been admitted there from 12.02.2011 to 21.02.2011. The diagnosis is noted as lacerated wound left ankle region. Open subtalar joint and tibialis anterior tendon injury. Debridement, tibialis anterior reconstruction, perforator based local skin flap and skin grafting have been done. So the discharge summary as well as the wound certificate would give a clear picture of the injury sustained by the victim boy. But unfortunately the claimant could not produce disability certificate. 15. The learned counsel would also contend about the dis-figuration caused due to the injuries to the minor boy. Photographs also has been attached with Ext.A6 discharge summary. So in view of the facts and circumstances, the MACA No.2185 of 2012 8 compensation is re-fixed as follows: Though no compensation was claimed towards bystander's expenses, the Tribunal awarded an amount of Rs.2,000/- on that head taking an amount of Rs.200/- per day. The incident was in the year 2011. So, Rs.300/- per day can be taken as the expense of bystander. So, towards bystander expenses, claimant is entitled to get Rs.3,000/- [300x10]. Deducting the amount already awarded, claimant will be entitled to get Rs.1,000/- [3,000-2,000] under that head. Towards extra nourishment, though an amount of Rs.2,000/was claimed, only Rs.750/- was awarded. Taking into account the fact that the claimant was a minor boy, aged 4 years only, Rs.2,000/- is awarded towards extra nourishment. Deducting the amount already awarded, the claimant would be entitled to get Rs.1,250/- [2,000-750]. Though an amount of Rs.30,000/was claimed, Tribunal awarded only Rs.5,000/- towards loss of amenities of life. So an amount of Rs.10,000/- is further awarded towards loss of amenities and Rs.5,000/ - towards disfiguration. MACA No.2185 of 2012 9 16. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.17,250/[1,000+1,250+10,000+5,000] (Rupees seventeen thousand two hundred and fifty only), which will carry interest at the rate of 6.5% per annum (excluding 182 days delay caused in filing the appeal) from the date of petition till realisation. Third respondent-insurer is directed to deposit the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. The entire enhanced amount shall be deposited in a nationalized bank and the F.D. Receipt to be produced before the Tribunal and that has to be kept in safe custody till the claimant attains majority. ## **Sd/-** ## **M.R.ANITHA** **JUDGE** ## **shg/**