Mohammed Fayaz, Abdulla and Aysha v. A. Yogesh Kumar, Dilip J. Tanna, United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945** ## **MACA NO. 1816 OF 2011** **AGAINST THE AWARD DATED 24.06.2011, IN OP(MV) 59/2006 ON THE FILES OF** ## **THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANTS/CLAIMANTS:** 1 MOHAMMED FAYAZ,AGED 10 YEARS, S/O.ABDULLA, SUHANA MANZIL,MANNEMKUZHI P.O.UPPALA, KASARAGOD TALUK AND DISTRICT. 2 ABDULLA,AGED 55, S/O.MAMMUNHI, SUHANA MANZIL,MANNEMKUZHI, P.O.UPPALA, KASARAGOD TALUKAND DISTRICT.(1ST APPELLANT IS MINOR REPRESENTED BY 2ND APPELLANTFATHER). 3 AYSHA, AGED 56, W/O ABDULLA, SUHANA MANZIL,MANNEMKUZHI P.O.UPPALA, KASARAGOD TALUK AND DISTRICT.(Impleaded the legal heirs of the 1[st] petitioner/1[st] appellant as additional appellant NO.3 in the party array as per order dated 08.10.2021 in I.A No. 1/2021.) BY ADVS. R.PADMAKUMARI R.PADMAKUMAR ## **RESPONDENTS/RESPONDENTS:** 1 A.YOGESH KUMAR AGED 35, S/O.JANARDHANA ACHARYA, R/AT S.K.NIVAS, UPPALA P.O., KASARAGOD TALUK ANDDISTRICT.671121 2 DILIP J.TANNA R/AT DHAN BHAVANNO-2, 2ND FLOOR 6,GAZDAR STREET, CHIRA BAZAR, GREATER MUMBAI,MAHARASHTRA.400210 3 THE BRANCH MANAGER M/S.UNITED INDIA INSURANCE CO.LTD., NO.XII,STADIUM HOUSE, 4TH FLOOR, VEET NARIMAN ROAD,MUMBAI - 400 020. SRI.P JACOB MATHEW, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 1816 of 2011 2 ## **JUDGMENT** This appeal arises from O.P(M.V) No. 59/2006 on the files of the Motor Accidents Claims Tribunal, Kasaragod. The said claim petition was submitted by the claimants seeking compensation for the injuries sustained to the 1[st] claimant, a minor boy aged five years, represented by the 2[nd] claimant, his father. The claim pertains to the compensation for the injuries sustained by him in an accident that occurred on 14.10.2005 when he was knocked down by a car bearing registration No.MH-01 T 9054. The said car was driven by the 1[st] respondent owned by the 2[nd] respondent and was insured with the 3[rd] respondent. Consequent to the accident, the 1[st] claimant suffered very serious injuries and became bedridden. The claim petition was submitted in such circumstances seeking compensation. 2. The 1[st] respondent filed a written statement denying the negligence on his part. The quantum of compensation was also disputed by them. It was also contended that the vehicle driven by him was validly insured with the 3[rd] respondent and if at all M.A.C.A No. 1816 of 2011 3 there is any liability, that has to be indemnified by 3[rd] respondent. The 3[rd] respondent filed a written statement admitting the accident but disputing the negligence on the part of the 1[st] respondent. It was also contended that at the time of the accident 1[st] respondent, driver was not having proper driving licence. The quantum of compensation was also disputed by them. 3. The evidence in this case consist of PWs 1 to 4 and Exts.A1 to A16 from the side of the appellant. The disability certificate issued by the Medical Board was marked as Ext. X1. After the trial, the Tribunal found that the accident occurred due to the negligence on the part of the 1[st] respondent in driving the car and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.8,67,568/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 8% per annum from the date of petition till realisation and with proportionate cost. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 4 M.A.C.A No. 1816 of 2011 4. Heard Smt. Padmakumari, the learned counsel appearing for the appellant and Sri.P Jacob Mathew, the learned counsel appearing for the 3[rd] respondent. 5. The main contest in this case relates to the quantum of compensation. The learned counsel for the appellant submits that this is a case in which a five years old boy sustained very serious injuries which resulted in 100% disability. It is also pointed out that the injuries sustained to him led to his premature death on 15.05.2016 i.e, after more than ten years of the accident. Despite the same, the Tribunal did not award adequate compensation, particularly under the head of disability as well as bystander expenses. 6. It was also contended that the petitioners incurred huge amounts for meeting the expenses for providing continuous treatment to the victim till he died on 15.05.2013. The appellants have also produced Annexures A1 to A301, the medical bills evidencing the expenses of treatment along with the appeal . M.A.C.A No. 1816 of 2011 5 7. The learned counsel appearing for the 3[rd] respondent stoutly opposes the said prayer. It was pointed out that the Tribunal awarded a very reasonable compensation, and no interference is required. As far as the future treatment expenses claimed by the appellants on the strength of the bills produced along with the appeal are concerned, the learned counsel for the 3[rd] respondent contends that the same as such cannot be accepted. Since the appellants have to establish the link between the said bill with the injuries sustained by the original claimant in the said accident, the said examination cannot be done in a proceeding relating to an appeal, and it is a matter of evidence. 8. I have carefully gone through records. The first head which is required to be considered is the compensation for disability. From the materials available on record, the fact that the victim of the accident sustained 100% disability is clearly established and there cannot be any dispute on this. Ext. X1 certificate is to that effect and the Tribunal has also accepted the same. But the Tribunal awarded only an amount of Rs.2,25,000/- M.A.C.A No. 1816 of 2011 6 towards compensation for disability, which was calculated by fixing the annual income of the original claimant as 15,000/- and by applying a multiplier of '15'. Thus specific challenge raised by the learned counsel for the appellants against the said finding is that it is grossly inadequate and to substantiate the said contention the learned counsel places reliance upon **Kajal v. Jagdish Chand & Ors** _**.**_ [2020 (1) KLT 743 SC], **Abhimanyu Partap Singh vs Namita Sekhon** [2022 (8) SCC 483] and **Aneesha Mol vs.Najeeb** [2023 6 KLT 122]. 9. After carefully going through the materials placed on records, I find force in the said contention. Having found that the victim of the accident sustained disability which was certified as 100%, and is completely bedridden, taking an annual income of Rs.15,000/- particularly for an accident occurred in the year 2005 appears to be extremely on the lower side. This is particularly because, what was being considered was the loss earning capacity and when the said question is being considered in respect of minor victim, the potential of such victim to earn in future cannot be M.A.C.A No. 1816 of 2011 7 ignored. Therefore, the monthly income has to be fixed considering that prospects as well and it cannot be by merely by taking into account his condition as on the date of the accident alone. In **Kajal’s** and **Abhimanyu Partap’s** (supra) cases, the monthly income of minor victims came up for consideration. In **Kajal** (supra) the accident occurred in the year 2007 and the Honourable Supreme Court was pleased to fix the monthly income as Rs.4,845/- per month, which was the wages for skilled labour in the State of Hariyana in the year 2010. While assessing the compensation, the Honourable Supreme Court also made an addition of Rs.40% towards future prospect as well. As far as **Abhimanyu Partap** (supra) is concerned, the Honourable Supreme Court was pleased to take the monthly income as Rs.5,000/- and calculated the compensation by applying the multiplier of '18'. In **Abhimanyu Partap** case the accident occurred in the year 1998. A learned Single Bench of our High Court in **Aneesha Mol** case (supra), confirmed the monthly income taken by the Tribunal in respect of an accident occurred in the year 2014. Thus when the all the aforesaid decisions are 8 M.A.C.A No. 1816 of 2011 taken into consideration, I am of the view that, Rs.5,000/- could be taken as a reasonable monthly income without any future prospects. 10. In this case, the future prospects are not taken into consideration particularly in view of the fact that the victim died during the pendency of this appeal in the year 2016. Since the victim already died, I am of the view that the multiplier that can be applied is the one which is contemplated as per the second Schedule of the Motor Vehicles Act, and applicable to the age of the minors below 15 years. Thus the relevant multiplier is '15'. Thus while reassessing the compensation with the above criteria, the additional compensation comes to Rs.9,00,000/- (5,000 x 12 x15). The amount already awarded by the Tribunal under this head is Rs.2,25,000/-. Thus the additional amount would come to Rs.6,75,000/-. 11. The next head which requires consideration is the attendant expenses. In this regard it is to be noted that in **Kajal** 's case, taking note of the difficulties in taking care of minor boy M.A.C.A No. 1816 of 2011 9 child aged 5 years, the Honourable Supreme Court fixed the expenses at the rate of Rs.5,000/- per bystander for two persons, thereby granting an amount of Rs.10,000/- per month. The said amount was calculated by applying the multiplier applicable which was '18'. The said decision was followed in **Abhimanyu Partap** 's case (supra) as well and the bystander expenses was granted at the rate of Rs.5,000/- for two persons. Similarly, in **Aneesha Mol** case (supra) this Court granted future attendance charges at the rate of Rs.10,000/- per month which was meant for two bystanders. In **Aneesha Mol** case (supra) this Court specifically took note of the specific need of the expertise required for attending the children for the disability of this nature and it was on that reason the amount was fixed as the rate of Rs.10,000/-. The factual situation existing in this case is also similar in nature and therefore, I do not find any reason to take a different yardstick than taken by the Honourable Supreme Court as well as this Court in the above referred decisions. Accordingly, I deem it appropriate to grant future bystander expenses at the rate of Rs.5,000/- each M.A.C.A No. 1816 of 2011 10 for two persons, and thereby fixing the same as Rs.10,000/- per month. However, even though in the other cases the amount was calculated on the basis of the multiplier of '18', here a different method needs to be applied in view of the peculiar factual situation. This is particularly because the victim died on 15.05.2016, and the appellants have a specific case that the death was also due to the injuries sustained in an accident. In such circumstances, in view of the fact that what is sought to be reimbursed is the actual expenses incurred or likely to be incurred by the family of the victim for looking after him, the realistic assessment needs to be made and hence the compensation under this head can be granted only for the period during which the victim was actually alive. In such circumstances, I deem it appropriate to grant it for a period of 11 years and thus the said amount is determined as Rs.13,20,000/- (10,000 x 12 x 11). The amount already awarded by the Tribunal, is Rs.2,70,000/- and thus the additional compensation would come to Rs.10,50,000/-. In the light of the above, the additional compensation under the M.A.C.A No. 1816 of 2011 11 heads of disability as well as bystanders expenses would come to Rs.17,25,000/-. 12. The next head which is highlighted by the learned counsel for the appellant is the expenses for treatment which the victim availed after the award. A series of bills have been produced along with the appeal and the total amount comes to more than Rs.6 lakhs. The learned counsel appearing for the 3[rd] respondent opposed the said application, contending that, without proving and establishing the link of these expenses with the injuries sustained by the victim in the accident, the said amount cannot be granted. I find force in the said contention. The bills are require to be proved, and the link of the same with the injuries are also to be established. However, this is an exercise which cannot be undertaken by an appellate court. Therefore, I deem it appropriate to remand the matter for the said limited purpose. At this juncture the learned counsel for the appellant also pointed out that as the treatment was continued till he died in the year 2016, on several occasions he was to be taken to the hospital for M.A.C.A No. 1816 of 2011 12 treatment and on account of the same, they have incurred huge expenses for transportation. I am of the view that, that is also a matter which requires to be proved by adducing evidence, and an opportunity can be granted to the appellants for establishing the same as well. In the result, this appeal is allowed with the following orders: i) The amount awarded by the Motor Accident Claims Tribunal, as per award dated 17.02.2011 in OP(MV) No.59/2006 as modified vide order dated 24.06.2011 in I.A. No.1007/2011 is hereby modified by granting an additional compensation of Rs,17,25,000/- for the heads referred to above. Out of the said amount, an amount of Rs.6,75,000/- will carry interest at the rate as ordered by the tribunal from the date of petition till realisation. As far as the additional amount awarded towards future bystander expenses is concerned, that is, Rs.10,50,000/- the same amount will carry interest at the rate as ordered by the tribunal from 15.05.2016, the date of the death of the deceased. The said 13 M.A.C.A No. 1816 of 2011 amount shall be deposited by the 3[rd] respondent with proportionate costs within a period of three months. ii) The issues as to the acceptability of the medical bills produced, the claim for medical expenses as well as the transportation expenses, are to be considered by the tribunal afresh and for that limited purpose the matter is remanded back to the tribunal. The tribunal shall give a reasonable opportunity to the parties concerned to adduce evidence in this regard and after appreciating the same, a decision in this regard should be taken. It is further ordered that as the original bills have been produced along with the appeal memorandum as Annexures A1 to A309, the same shall be returned to the appellant for producing the same before the tribunal, after retaining the certified copies in this file. It is further ordered that, every endevour shall be taken by the tribunal to dispose of the matter considering the fact that, the claim petition was submitted in the year 2006 and at any rate, appropriate decision in this regard shall be taken within a period of M.A.C.A No. 1816 of 2011 **==> picture [13 x 10] intentionally omitted <==** six months from the production of the judgment before the tribunal. The parties shall appear before the tribunal on 25.03.2024. Sd/- ## **ZIYAD RAHMAN A.A** **JUDGE** rpk/ncd