Mohamed Refnas (minor) represented by guardian Sarafunnisa v. T.K. Jehangeer, M. Hamza Haji, United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 29TH DAY OF MAY 2017/8TH JYAISHTA, 1939 MACA.No. 116 of 2005 ( ) ------------------------AGAINST THE AWARD IN OPMV 118/2001 of M.A.C.T., MANJERI DATED 01-10-2004 APPELLANT(S)/PETITIONER: ---------------------- MOHAMED REFNAS, AGED 7 YEARS, MINOR, REPRESENTED BY GUARDIAN SARAFUNNISA, (MOTHER) THEKKEKALATHIL HOUSE, P.O.VETTATHUR. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S):RESPONDENTS ------------------------------------ 1. T.K.JEHANGEER, S/O.MOHAMMED, THERAKKATTIL HOUSE, P.O.ALANALLUR (DRIVER). 2. M.HAMZA HAJI, S/O.MOMA HAJI, MADAPPARA HOUSE, P.O.VETTATHUR (OWNER). 3. UNITED INDIA INSURANCE CO.LTD., PERINTHALMANNA. R3 BY ADV. SRI.M.A.GEORGE R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ----------------------------------------------M.A.C.A No.116 of 2005 ---------------------------------------------Dated this the 29[th] day of May, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out the award passed by the Motor Accidents Claims Tribunal, Manjeri dated 1.10.2004 in O.P.(MV)No.118 of 2001, a claim petition filed under section 166 of the Motor Vehicles Act, 1988 by the appellant/claimant, a minor aged 4 years represented by his mother, claiming compensation on account of the injuries sustained by him in a motor vehicle accident occurred on 11.11.2000 while he was walking through the side of a public road. At the place of accident, he was hit by a goods jeep bearing Reg.No.KL-10/K-4084 driven and owned by the first and second respondents and insured with the third respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the jeep by the first respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- under different heads. 2. Before the Tribunal, no written statement was filed by the MACA.116/2005 2 first and second respondents. The third respondent insurer filed written statement admitting the insurance coverage of the vehicle involved in the accident. The insurer contended that the accident occurred due to the negligence on the part of the appellant/claimant who crossed the road without care and caution and that, the compensation claimed under different heads is highly excessive. 3. Before the Tribunal, the mother of the appellant/claimant was examined as PW1 and Exts.A1 to A9 were marked on his side. Ext.X1 is the disability certificate issued by the Medical Board certifying a total permanent disability of 32% (2% orthopedic disability and 30% visual disability). 4. After considering the evidence and materials on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the jeep by the first respondent driver. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the second respondent owner. The Tribunal awarded a total compensation of Rs.1,05,273/- and directed third respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 6% per annum from the date of the petition till realisation and a cost MACA.116/2005 3 of Rs.9,500/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. Heard the learned counsel for the third respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2000 and at the time of accident the appellant/claimant was a minor aged 4 years. The injuries sustained by the appellant/claimant as borne out from Ext.A2 wound certificate are as follows; “Lacerated wound below the right eye with injury to (Rt) eye and head injury cerebral contusion with fracture of left parietal bone and fracture of anterior wall of (Rt) mavilla with vitreous hemorrhage with suspected optic nerve injury (Rt) eye with scalp contusion.” Due to the injuries sustained in the accident, the appellant/claimant underwent inpatient treatment for a period of 8 days. Ext.X1 is the disability certificate issued by the Medical Board, which certifies 2% orthopedic disability and 30% visual disability. Ext.A9 series are the MACA.116/2005 4 medical bills for a total sum of Rs.11973.34 towards purchase of medicine and treatment. 8. Since the appellant/claimant was not an earning member, the Tribunal reckoned his annual monthly income notionally at Rs.15,000/- for the purpose of assessing disability compensation. Applying the multiplier of 15 and the percentage of disability as 32%, the Tribunal awarded a sum of Rs.72,000/- (15,000x15x32/100) towards disability compensation and a further sum of Rs.10,000/each towards pain and suffering and disfigurement. The total compensation awarded by the Tribunal under the above three heads comes to Rs.92,000/-. ## 9. In **Master Mallikarjun v. Divisional Manager, The National Insurance Co.Ltd & Anr.[AIR 2014 SC 736]** , the Apex Court held as follows:- “12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that 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 lakhs; upto 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be MACA.116/2005 5 Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:- |to get the compensation as follows:-|| |---|---| |**HEAD**|**COMPENSATION**<br>**AMOUNT**| |Pain and suffering already undergone<br>and to be suffered in future, mental<br>and<br>physical<br>shock, hardship,<br>inconvenience, and discomforts etc.,<br>and loss of amenities in life on account<br>of permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the<br>period of hospitalisation.|Rs.25,000/-| |Medical and incidental expenses<br>during the period of hospitalisation for<br>58 days|Rs.25,000/-| |Future medical expenses for correction<br>of the mal union of fracture and<br>incidental<br>expenses<br>for<br>such<br>treatment.|Rs.25,000/-| |TOTAL|Rs.3,75,000/-| 10. Applying the principles laid down by the Apex Court in **Mallikarjun's case (supra)** , the appellant/claimant is entitled for a sum of Rs.4,00,000/- towards pain and suffering, discomforts and loss of amenities in life on account of the permanent disability, since the percentage of permanent disability assessed in Ext.X1 disability being 32%. After deducting Rs.72,000/- awarded by the Tribunal MACA.116/2005 6 towards disability compensation and a further sum of Rs.10,000/each towards pain and suffering and disfigurement, the appellant/claimant will be entitled for an additional compensation of **Rs.3,08,000/-** (4,00,000–72,000-10,000-10,000) under this head. 11. Due to the injuries sustained in the accident, the appellant/claimant had undergone inpatient treatment for a period of 8 days. The nature of the injuries sustained, as borne out from Ext.A5 and A6 medical reports, would indicate that even after discharge from the hospital, the appellant/claimant was bedridden for some time. His right eye is totally blind. In such circumstances, applying the principles laid down by the Apex Court in **Mallikarjun's case (supra)** appellant/claimant is awarded a sum of **Rs.25,000/-** towards discomfort, inconvenience and loss of earning for the parents during the period of hospitalisation. 12. Towards medical expenses, the Tribunal awarded a sum of Rs.11,973/- covered by Ext.A9 medical bills. Towards transportation to hospital the Tribunal awarded Rs.500/- and towards extra nourishment and bystander expenses Rs.400/- each. Applying the principles laid down by the Apex Court in **Mallikarjun's case (supra)** appellant/claimant is entitled for Rs.25,000/- towards MACA.116/2005 7 medical and incidental expenses during the period of hospitalisation. After deducting Rs.11,973/- awarded by the Tribunal towards medical expenses, Rs.500/- towards transportation to hospital and Rs.400/each towards extra nourishment and bystander expenses, the appellant/claimant will be entitled for an additional compensation of **Rs.11,727/-** (25,000–11,973-500-400-400) under this head. 13. In the absence of any reliable materials, the appellant/claimant is not entitled for any compensation under the head future medical expenses. 14. In the result, the appellant/claimant is entitled for a sum of **Rs.3,44,727/-** (3,08,000+25,000+11,727) towards additional compensation in this appeal. 15. This appeal was admitted on file and notice was ordered to the respondents on 1.2.2005. However, no process was paid by the appellant. Though the matter was listed before Registrar (Judicial) on 21.8.2008, there was no representation. Thereafter, by order dated 15.6.2015 the appellant was granted two days' time to cure the defects. Accordingly, the process was paid and notice was issued to the respondents on 17.7.2015, which was served on the respondents. In view of the inordinate delay on the part of the MACA.116/2005 8 appellant in paying process, he will be entitled for interest on the additional compensation awarded in this appeal, from the date of claim petition till realisation, excluding the aforesaid period of delay in paying process, i.e., from 1.2.2005 to 15.6.2015. Since insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the additional compensation awarded in this appeal together with interest at the rate of 8% per annum from the date of the petition till realisation, excluding the aforesaid period of delay, i.e., from 1.2.2005 to 15.6.2015, within two months from the date of receipt of a certified copy of this judgment. No order as to costs. ## **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** MACA.116/2005 9 MACA.116/2005 10 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010**