National Insurance Company Limited v. Niyas K (Minor) and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** **MACA NO. 827 OF 2014** **AGAINST THE AWARD DATED 20.12.2013 IN OPMV 202/2009 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANT/3rd RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED NEW DELHI NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. ROAD, KOCHI-35. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/1ST RESPONDENT:** - **1 NIYAS K (MINOR)(Legal Heir)(DIED) S/O MUHAMMED KUNHI C.K. NOW REPRESENTED BY HIS NEXT FRIEND AND MOTHER SAMEERA P, KOVVAL HOUSE, CHITTARI SOUTH P.O., HOSDURG TALUK, KASARAGOD DISTRICT. PIN:671 320. (2ND PETITIONER IN THE CLAIM PETITION IS IMPLEADED ONLY AS THE GUARDIAN OF THE MINOR CLAIMANT) (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 & 2 IN THE ABOVE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL)** - **2 K. MOHAMMED AGED 44 YRS, RESIDING AT KOVVAL HOUSE, SOUTH CHITHARI, CHITHARI VILLAGE AT HOSDURG TALUK,KASARGOD DISTRICT** - **3 SAMEERA P AGED 36YRS,W/O K MOHAMMED RESIDING AT KOVVAL HOUSE,SOUTH CHITHARI,CHITHARI VILLAGE AT HOSDURG TALUK,KASARGOD DISTRICT(ADDL.R2AND R3 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASD. RESPONDENT AS PER ORDER DATD, 1/2/2019 IN IA 1/19 IN MACA827/14) BY ADVS.** - **M.JAYAKRISHNAN-R1 AND R2 K KESAVANKUTTY** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 827 of 2014 **2** ## **JUDGMENT** This appeal has been directed against the award in O.P.M.V No.202/2009 on the file of Motor Accidents Claims Tribunal, Kasaragod by the appellant/third respondent/insurer. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by Minor Niyas represented by his father. Total compensation of Rs.40,00,000/- has been claimed. It is alleged that on 24.01.2008 while the minor boy was walking through the side of the road at about 1.00 p.m., Maruti Swift Car bearing Registration No.KL66-7776 driven by the 1[st] respondent in O.P.(M.V) hit him at Chittari Electricity Office (In the appeal claimant alone has been impleaded as respondent). It is alleged that the accident happened due to the rash and negligent driving of the car. 2. Before the Tribunal, driver and owner of the car filed written statement admitting the accident and contending that the car is covered with valid policy of insurance issued by the appellant. Rashness and negligence attributed against the driver of car is denied. It is also contended that the compensation claimed under various heads are excessive. Appellant filed written statement admitting the policy coverage with respect to the offending vehicle. M.A.C.A No. 827 of 2014 **3** 3. PWs.1 and 2 were examined and Exts. A1 to A11 and X1 have been marked from the side of the respondent/claimant. On evaluation of the evidence as well as facts and circumstances, Tribunal found that the accident happened due to the rash and negligent driving of the car and awarded a total compensation of Rs.26,40,000/- under various heads together with interest at the rate of 8% per annum. 4. Aggrieved by the quantum of compensation awarded by the Tribunal, appellant/insurer came up in appeal for various grounds stated in the memorandum of appeal. During the pendency of appeal, minor boy died on 15.09.2017 and his parents were impleaded as per order in I.A.No.01/2019 dated 01.02.2019 as additional respondents 2 and 3. Interim stay of execution of the award was granted by this Court for a period of three months on condition that the appellant will deposit 50% of the award amount within one month. It is reported by the learned Counsel for the appellant/insurer that, the amount has already been deposited by the appellant. After appearance, additional respondents filed I.A.No.1476/2014 to receive additional documents. Additional documents produced are received and marked as Annexures R1(a) to R1(j). M.A.C.A No. 827 of 2014 **4** 5. According to Sri.P.Jacob Mathew, the learned Standing Counsel for the appellant, the amount awarded by the Tribunal is highly exorbitant and excessive and cannot be stated as just compensation as contemplated under Section 166 of the Act. It is contended that since minor boy died on 15.09.2017 during the pendency of the appeal, the amount of Rs.14,40,000/- awarded towards bystander expenses is to be reduced. Multiplier taken as '40' by the Tribunal, according to him, is illegal and irrational. It is also contended that no material has been produced for awarding Rs.4,00,000/- towards future treatment expenses. Hence the amount awarded under those heads are to be reduced. 6. This is an unfortunate case in which a minor boy aged 6 years only, sustained very serious injuries out of a motor accident making him almost in a vegetative stage. After first aid from a local hospital, the boy was referred to Unity Health Complex, Mangalore for better management. He had undergone treatment from 24.01.2008 to 14.04.2008 at Unity Health Complex. Ext.A3 wound certificate, Ext.A4 discharge summary, Ext.A5 series M.R.I brain scan and Ext.A6 disability certificate and Ext.X1 disability certificate issued by the Medical Board would prove the injuries and the treatment undergone by the injured M.A.C.A No. 827 of 2014 **5** minor. 7. Ext.A3 wound certificate noted the following injuries: Laceration over the scalp and right forehead with fracture skull bone (Frontal), brain swelling and diffuse, axonal injury. Ext.A4 discharge summary issued from Unity Health Complex would state the diagnosis as follows: Diffuse axonal injury # ® frontal bone and contusion cerebral oedema. Ext.A5 series M.R.I brain (Plain) dated 29.01.2008 would state the impression as follows: C/o Cranial Trauma, MR Morphology of Haemorrhagic diffuse axonal injury involving bilateral basal nuclei, Right thalamus and corpus callosum causing mild focal mass effect, FOCI of diffuse axonal injury involving upper brainstem structures, left thalamus and internal capsule, Bilateral medial temporal and basifrontal contusion and subarachnoid haemorrhage. M.R.I Bran (Plain) dated 29.01.2009 would state the impression as follows : C/o Old Cranial Trauma, MR Morphology of T2 Hyperintensity FOCI involving right crus cerebri, bilateral lentiform nuclei and right corona radiata – suggests the possibility of FOCI of diffuse axonal injury, atrophy changes involving cerebellum and brainstem structures with mild cerebral atrophy changes. Ext.A6 certificate issued by the Medico Legal Consultant attached to Unity Health Complex certified that the minor boy was M.A.C.A No. 827 of 2014 **6** treated for diffused axonal injury, fracture right frontal bone, contusion of temporo parietal lobe (brain) & Cerebral Oedema. He was admitted on 24.01.2008 & discharged on 14.04.2008. On examination the child has evidence of impairment of higher functions (brain) with left sided hemiparesis and it was certified that the injured has got intellectual disability, speech disability, cranial nerve disability, motor system disability, sensory system disability, mild bladder disability & Ataxia and all these disabilities are due to the injuries sustained and are permanent in nature and the disability is assessed at 88% of the whole body. Ext.A10 is another certificate dated 20.06.2013 issued by the Medico Legal Consultant of Unity Health Complex wherein it has been certified that the boy needs life long medical treatment for brain higher function dysfunction and seizures and treatment modality should be reviewed after three years. Ext.X1 disability certificate issued by the Medical Board, Medical College Hospital, Calicut certifying 100% permanent disability. So, the above treatment records as well as the disability certificates would speak in volumes about the grievous nature of the injuries and the disability sustained by the minor boy. The mother of the victim was examined as PW1 and filed chief affidavit detailing about the treatment undergone by the son and after discharge he had continued M.A.C.A No. 827 of 2014 **7** treatment and went for review on several occasions. He had also undergone physiotherapy continuously and at the time of examination physiotherapy was being continued on the advice of the doctor. During a short cross-examination, she reiterated that there is no improvement. PW2 is the Doctor who issued Ext.A6 and Ext.A10 certificates and no material could be brought out in cross-examination to testify the certificates issued by him. Moreover, Ext.X1 is the certificate issued by the medical board certifying 100% disability also. 8. Initially as per Ext.A6 disability certificate, though 88% whole body disability was assessed, as per Ext.X1 certificate issued by the Medical Board and Ext.A10 certificate issued by PW2, permanent disability was raised to 100% whole body. Ultimately, Tribunal accepted 100% whole body disability. Award also would show that Tribunal had seen the child and he is living like a vegetable and surviving due to high care and treatment provided by the parents. Hence Tribunal found that child requires life long stander. An amount of Rs.2,39,500/- has been awarded towards transportation cost, extra nourishment, medical expenses etc. That is not further challenged. 9. As stated earlier, the first contention is with regard to the amount awarded under bystander expenses to the tune of M.A.C.A No. 827 of 2014 **8** Rs.14,14,000/- by applying a multiplier of '40'. The maximum multiplier which can be applied is 18 as per **Sarla Varma v. Delhi Transport Corporation (2009 (6) SCC 121)** approved by **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** . Moreover, the victim in this case died on 15.09.2017 i.e. almost after nine years and 8 months. 10. The learned Counsel for the additional respondents 2 and 3 on the other hand contended that no interference is called for in the above heads and also relied on **Kajal v. Jagdish Chand and Others** **[2020 KHC 6144],** in which the Apex Court taken Rs.10,000/- per month towards expenses of bystander in an accident occurred on 18.10.2007 of a minor girl aged 12 years. It is also contended that Rs.15,00,000/was awarded towards pain and suffering in that case. But, Tribunal awarded Rs.1,00,000/- only under the head of pain and suffering. With respect to the future treatment awarded, the learned counsel contended that additional documents have been produced from the side of the additional respondents to prove treatments undergone by the minor boy after the award. Hence no interference is warranted especially because child died due to the injuries sustained out of the accident also. 11. As rightly pointed out by the learned counsel for the M.A.C.A No. 827 of 2014 **9** additional respondents, multiplicand of 3,000 adopted by the Tribunal will not satisfy the actual expenses of bystander. Ext.X1 disability certificate issued by the Medical Board certifying 100% permanent disability to the minor boy. It is true that Ext.A6 disability certificate issued by the Doctor certifies 88% permanent disability. However, Medical Board certifies 100% permanent disability, that can be approved in view of the serious head injuries sustained by the claimant and he had undergone inpatient treatment from 24.01.2008 to 14.04.2008. The treatment records produced by the respondents would go to show that he was on treatment during the period of 2013 and 2014. As per the principles in **Kajal (supra)** since the accident was in the year of 2008 and the injured was a minor boy aged 6 years, in a vegetative stage, the attendant expenses can reasonably be taken as Rs.8,000/- per month. It has come out that within 9 years and 8 months the victim boy died also. So, an amount of Rs.9,28,000/- is awarded under that head. 12. Next contention is with respect to the amount awarded towards future treatment expenses. An amount of Rs.4,00,000/- was awarded towards future treatment expenses. The learned Standing Counsel contended that the minor boy died after 9 years 8 months and no medical records were produced before the Tribunal to award such M.A.C.A No. 827 of 2014 **10** huge amount under that head. In the appeal proceedings Exts.R1(a) to R1(g) have been produced. Ext.R1(a) prescriptions prove the victim had undergone inpatient treatment during the period of 2013 and 2014. It has come out that he died at the age of 15. So towards future treatment expenses an amount of Rs.3,00,000/- is awarded. Excess amount awarded by the Tribunal is **Rs.1,00,000/-** (4,00,000-3,00,000). 13. The learned counsel for the additional respondents in this context contended that Rs.1,00,000/- granted towards pain and sufferings is very low. X1 disability certificate produced from the side of the respondents would prove that the minor boy was totally bed ridden and permanent disability at 100% has been certified by the Board and he has undergone 3 months inpatient treatment. As per **Kajal,** the Apex Court had taken Rs.15,00,000/- towards pain and suffering. In this case, since the victim died after 9 years and 8 months, an amount of Rs.2,50,000/- would be reasonable towards pain and suffering. Deducting the amount already awarded, the balance would be **Rs.1,50,000/-** (2,50,000-1,00,000). It is further contended that no compensation has been awarded towards marriage prospects and educational prospects. On going through **Kajal,** it is seen that the injured is a minor girl aged 12 years. She was a bright young girl and M.A.C.A No. 827 of 2014 **11** taking into account all those facts especially that she was 12 years old, Rs.3,00,000/- was awarded towards marriage prospects. Claimant in the present case was 6 years old at the time of accident, moreover injured died at the age of 15. So I am of the view that no compensation need be awarded towards marriage prospects. 14. The total award passed by the Tribunal is Rs.26,39,500/- **.** From that, Rs.5,12,000/- towards bystander expenses and Rs.1,00,000/- towards future treatment expenses are to be deducted and at the same time Rs.1,50,000/- towards pain and suffering is to be added. Hence respondents are entitled to realise total compensation of Rs.21,77,500/-. Excess compensation awarded is Rs.26,39,500 – Rs.21,77,500 = Rs.4,62,000/-. That is liable to be reduced. 15. In the result, the appeal allowed in part and the total compensation awardable is reduced to Rs.21,77,500/-. It has come out that 50% of the award amount has already been deposited by the insurer. Deducting that amount, the balance amount is to be deposited by the appellant which carry interest at the rate of 6.5% per annum from the date of petition, till realization. The appellant/insurer shall satisfy the balance compensation, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. M.A.C.A No. 827 of 2014 **12** 16. The disbursement of the amount to the appellants shall be 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.D162475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. In the result appeal stands allowed in part. Parties shall bear their respective costs. **M.R.ANITHA, JUDGE** rps