Nikhil (minor) v. Manoj @ Lal, K.C. Mathai and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941** **MACA.No.2255 OF 2007** **AGAINST THE AWARD IN O.P.(MV) NO.982/2000 DATED 17-05-2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/CLAIMANT:** **NIKHIL(MINOR), S/O.K.K.SOMANADHAN NAIR, KULATHUMKAL HOUSE, MANIMALA P.O., VELLAVOOR VILLAGE** - **(REPRESENTED BY HIS FATHER K.K.SOMANADHAN NAIR AND HIS NEXT FRIEND)** - **CAUSE TITLE AMENDED** **CAUSE TITLE IS AMENDED BY DELETING THE MARKED PORTION AND ADDING “LATE A MINOR, BY K.K.SOMANADHAN NAIR, HIS NEXT FRIEND, BUT NOW HAVING ATTAINED MAJORITY” AS PER ORDER DATED 06.01.2020 IN I.A.NO.2 OF 2019.** **BY ADV. SRI.LIJI.J.VADAKEDOM** ## **RESPONDENTS/RESPONDENTS:** - **1 MANOJ @ LAL, CHAVARAMPLACKAL HOUSE, KUNNUM BHAGOM, VELLAVOOR, MANIMALA.** - **2 K.C.MATHAI, KADUVAKUZHIYIL, VAKATHANAM P.O., CHANGANACHERRY.** - **3 THE UNITED INDIA INSURANCE CO. LTD., CHANGANACHERRY.** - **R3 BY ADV. SRI.V.JAYAPRADEEP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2255 OF 2007** -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.982 of 2000 on the file of the Motor Accidents Claims Tribunal, Kottayam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 19.11.1999, while he was travelling in an autorickshaw bearing registration No.KL-5/D-7053 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the autorickshaw capsized and the appellant, who was a minor aged 6 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the autorickshaw involved in **MACA.No.2255 OF 2007** -3- the accident; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the compensation claimed under various heads is on the higher side. 4. Before the Tribunal, the claim petition was tried along with connected matter. Exts.A1 to A24 were marked on the side of the claimants. The father of the claimant was examined as PW1. 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 autorickshaw 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.86,691/-, together with interest at the rate of 6% per annum from the date of petition till realisation, with a cost of Rs.4,000/-. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. **MACA.No.2255 OF 2007** -4- 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent is dispensed with, by the order of this Court dated 14.02.2020. 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 mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the **MACA.No.2255 OF 2007** -5- 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; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded<br>(in rupees)| |---|---|---|---| |1|Transport to hospital|500/-|500/-| |2|Extra nourishment|500/-|500/-| **MACA.No.2255 OF 2007** -6- |3|Medical expenses|20,000/-|35,191/-| |---|---|---|---| |4|Bystander expenses|5,000/-|3,000/-| |5|Compensation for pain and<br>suffering|75,000/-|15,000/-| |6|Compensation for permanent<br>disability|50,000/-|22,500/-| |7|Compensation for loss of future<br>prospects|50,000/-|10,000/-| ||**TOTAL**|**2,01,000/-**|**86,691/-**| 12. The accident occurred on 19.11.1999. At the time of accident, the appellant was a minor aged 6 years. The document marked as Ext.A23 is the wound certificate issued from the Medical College Hospital, Kottayam, as per which the appellant sustained lacerated wound frontal 3x2cm. There was a depressed fracture of frontal bone. Ext.A14 is the discharge card issued from the Medical College Hospital, Kottayam, as per which he had undergone inpatient treatment for a period of 52 days, under three different spells, which was followed by physiotherapy for another 52 days. The document marked as Exts.A18 and A19 series of medical bills and Ext.A21 is cash bill for physiotherapy charges, for a total sum of Rs.35,191/-. 13. The document marked as Ext.A16 is the disability certificate issued by an Associate Professor of Neuro Surgery from Medical College Hospital, Kottayam in which the **MACA.No.2255 OF 2007** -7- permanent disability of the appellant on account of the injuries sustained in the accident is assessed as 15%. As per Ext.A16 disability certificate, the appellant is having loss of memory and headache. Ext.A16 disability certificate was not proved by examining the doctor concerned. Therefore, the Tribunal took the percentage of disability as 10%. The document marked as Ext.A20 is the certificate issued by the Physiotherapist, as per which, at the time of admission, the appellant did not have control over higher functioning of the brain and was disoriented. On discharge, he showed marked improvement but speech was slightly slurring and mild memory problems. His balance also was not steady. Considering the nature of injuries sustained and also the disabilities noted in Ext.A16, this Court deem it appropriate to take the percentage of permanent whole body disability as 12% for the purpose of awarding compensation under various heads. 14. During the course of arguments, the learned counsel for the appellant would place reliance on the judgment of the Apex Court in **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014)** **MACA.No.2255 OF 2007** -8- ## **14 SCC 396]** . 15. In **Master Mallikarjun's case (supra)** , a decision relied on by the learned counsel for the appellant, 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 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick. Paragraph 12 of the said decision reads thus; “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 **MACA.No.2255 OF 2007** -9- 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; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 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 hospitalisation 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:- |compensation as follows:-|| |---|---| |Head|Compensation<br>amount| |Pain and suffering already undergone and<br>to be suffered in future, mental and<br>physical shock, hardship, inconvenience<br>and discomforts and loss of amenities in<br>life on account of permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the period<br>of hospitalisation.|Rs.25,000/-| |Medical and incidental expenses during the<br>period of hospitalisation for 58 days.|Rs.25,000/-| |Future medical expenses for correction of<br>the malunion of fracture and incidental<br>expenses for such treatment.|Rs.25,000/-| |**TOTAL:-**|**Rs.3,75,000/-**| ## **Master Mallikarjun's case (supra)** , for permanent disability **MACA.No.2255 OF 2007** -10- above 10% and upto 30%, the compensation under the head _pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life on account of permanent disability_ shall be Rs.3,00,000/-. In the instant case, the permanent whole body disability of the appellant is taken as 12%. Therefore, the appellant is entitled for a sum of **Rs.3,00,000/-** as compensation under this head. 17. In **Mallikarjun's case** , the injured had undergone inpatient treatment for a period of 58 days. Therefore, under the head _discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation,_ the Apex Court awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the inpatient treatment the appellant had undergone for a period of 52 days, followed by 52 days physiotherapy, a sum of **Rs.25,000/-** can be granted as compensation under this head. 18. In **Mallikarjun's case** , under the head _medical and incidental expenses during the period of hospitalisation_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, **MACA.No.2255 OF 2007** -11- Exts.A18 and A19 series of medical bills and Ext.A21 cash bill for physiotherapy charges are for a sum of Rs.35,191/-. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.60,191/-** (25,000 + 35,191). 19. In **Mallikarjun's case** , under the head _future medical expenses for correction of the malunion of fracture and incidental expenses for such treatment_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, the pleading and materials on record would indicate that on account of the injuries sustained in the accident, the appellant is having loss of memory and headache. Therefore, the appellant is granted a sum of **Rs.25,000/-** towards future treatment. 20. In the result, the total compensation in O.P.(MV) No.982 of 2000 is re-fixed as Rs.4,10,191/- [3,00,000 + 25,000 + 60,191 + 25,000) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.3,23,500/-** (Rupees three lakh twenty three thousand five hundred only) [4,10,191 - 86,691] in this **MACA.No.2255 OF 2007** -12- appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation, excluding the period of delay of 201 days in filing this appeal, which is condoned by the order dated 14.02.2020, subject to the condition that, in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount, for the period of delay. 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant taking note of the law on the point and as per 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. The appellant/claimant shall submit his 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, **MACA.No.2255 OF 2007** -13- 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. Sd/- **ANIL K. NARENDRAN JUDGE** bpr