Nisha Sebastian v. V.M. Ali, P.S. Vinod, United India Insurance Company Limited, K.M. Jacob, T.H. Jaleel (Jalal) and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935** ## **MACA.No. 1462 of 2011** **-------------------------AGAINST THE AWARD IN OP(MV)NO. 70/2004 OF ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 29-12-2010** **....** **APPELLANT(S)/PETITIONER:** **----------------------------------------------** **NISHA SEBASTIAN,AGED 26 YEARS, D/O.T.X.SEBASTIAN, THEKKUMPURATHU HOUSE, NEAR PORAKKELI COLONY, NETTOOR P.O., MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM, DISTRICT.** **BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.G.ARUN GOPAN** **RESPONDENT(S)/RESPONDENTS: ----------------------------------------------------** **1. V.M.ALI,S/O. MARAKKAR, VADAPPILLY HOUSE, AMBATTUKAVU, CHOORNIKKARA KARA, ALUVA WEST VILLAGE, THAIKKATTUKARA P.O., KOCHI-683 106.** ## **2. P.S.VINOD, S/O.BALAKRISHNAN,** - **KOOVAKKATTIL HOUSE, CHOORNIKKARA, THAIKKATTUKARA P.O. KOCHI-683 106.** **3. UNITED INDIA INSURANCE COMPANY LIMITED, P.M.S.BUILDING, ELOOR ROAD, KALAMASSERY, ERNAKULAM, KOCHI-683 104.** **4. K.M.JACOB, S/O.MATHEW, MOOLIYATTIL HOUSE, KUSUMAGIRI P.O., KAKKANAD, KOCHI-682 030.** **5. T.H.JALEEL (JALAL), S/O.HANIFFA, C/O.RAZAK, OLIYIL HOUSE, AMBADIMOOLA, KAKKANAD, KOCHI-682030.** ## **6. NATIONAL INSURANCE COMPANY LIMITED, COCHIN-682 016.** **R3 BY ADV. SRI.RAJAN P.KALIYATH R6 BY ADV. SRI.E.M.JOSEPH BY ADV. SRI.M.A.GEORGE BY ADV. SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------M.A.C.A. No.1462 of 2011 --------------------------------------------------------------Dated this, the 20[th] day of November 2013 ## Judgment ## Ramakrishnan, J. The claimant in OP(MV) No.70/04 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by her in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the first respondent and the fourth respondent owned by the second respondent and fifth respondent and insured with the third respondent ans 6[th] respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the first respondent and awarded a total compensation of Rs.48,633/on various heads as follows : MACA No.1462/11 2 |**_Head_**|**_Amount ₹_**| |---|---| |**_Loss of earning_**|**_3,000.00_**| |**_Transportation expenses_**|**_1,000.00_**| |**_Damage to clothes_**|**_400.00_**| |**_Extra nourishment_**|**_2,000.00_**| |**_Medical expenses_**|**_214,633.00_**| |**_Attendant expenses_**|**_7,500.00_**| |**_Shock, pain and sufferings_**|**_40,000.00_**| |**_Continuing and permanent_**<br>**_disability_**|**_172,800.00_**| |**_Loss of amenities and_**<br>**_enjoyment in life_**|**_25,000.00_**| |**_Disfiguration of face_**|**_20,000.00_**| |**_Total_**|**486,333.00**| Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal, seeking enhanced compensation. 2. We have heard the learned counsel for the appellant and also the learned counsel for the Insurance company. 3. The counsel for the appellant submitted that the appellant was a second year B.Com student and aged only 20 years at the time of accident and she suffered severe disability including loss of one eye in the accident. She had lost her future on MACA No.1462/11 3 account of the disabilities suffered by her. Her marriage prospects has been considerably affected on account of the same. Serious disfiguration has been caused to her fact and this will cause severe mental shock and pain due to humiliation to her when she appears before public. These aspects have not been properly considered by the Tribunal while awarding compensation. The Tribunal has taken a notional income of Rs.3,000/- for the purpose of awarding compensation under the head loss of earning capacity. She had suffered 30% permanent disability. So, the amounts awarded under the head loss of earning capacity, loss of amenities in life, disfiguration etc. are on the lower side. The amount awarded under the head pain and sufferings is also low. So, according to the learned counsel for the appellant, the appellant is entitled to enhancement on all heads. 4. On the other hand, the learned counsel for the insurance company submitted that the appellant was only a student at the time of accident and a non-earning member and so, the question of loss of earning capacity does not arise at all. But, the Tribunal has awarded huge amount under that head. Since huge MACA No.1462/11 4 amount is awarded under that head and notional amounts are also awarded under the head loss of amenities in life, the compensation for disfiguration of face, the appellant is not entitled to get further enhancement under those heads. The total compensation awarded is just and proper and no interference is called for with the award of the Tribunal, at the hands of this Court. 5. We have considered the rival contentions of both parties in detail. 6. It is quite unfortunate that a young girl of 20 years suffered severe injuries and consequentially, suffered severe disability in the accident at her young age, marring her future prospects. The relevant portion of the award passed by the Tribunal, dealing with the injuries sustained by the appellant, reads as follows : “...she had sustained compound fracture of orbit with loss of vision on the right eye, lacerated wound on the right forehead extensive to the upper eye lid, bleeding from the nose and mouth, compound fracture of skull - frontal bone. Extensive comminuted fracture of right orbit, right maxillary sinus, right frontal bone and right zygoma. Exts.A25, 26 and 27 are the CT scan of brain which shows that pneumocephalus, normal brain parenchyma, extensive comminuted fracture involving wall of right maxillary sinus, right orbit, right frontal region, right zygoma, right pterygoid plates and mandible, blow out fracture of right orbit with partial hemiation of eyeball into right maxillary sinus with air and blood in the right orbit.” MACA No.1462/11 5 It is also seen from the medical documents that all structures are avulsed from roof and wound debridement and orbital wall reconstruction was made under general anaesthesia, right orbit is shaggy and roof of orbit is comminuted. Her eye ball sinking down. She had defective vision of right eye Ext.A32 disability certificate issued by the Medical Board certified her disability as 30% permanent disability. Though she was a student, one will have to anticipate that she will get a good employment after education, but on account of the disability, that possibility has been reduced. So, the Tribunal was perfectly justified in taking a notional income of Rs.3,000/- for the purpose of assessing compensation under the head loss of earning capacity. But, for the age group of 20 years, the multiplier applicable as per the decision of the Supreme Court in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), is 18 and not 16 as adopted by the Tribunal. If a recalculation is made on the basis of these inputs, the appellant will be entitled to get Rs.1,94,400/- under the head permanent disability (3000 x 12 x 18 x 30%), instead of Rs.1,72,800/-, MACA No.1462/11 6 awarded by the Tribunal and we award the said amount under that head. 7. Being a girl of 20 years, the loss of one eye will have great impact in her future life. Her better marriage prospects will be affected on account of the same. She will have frustration in appearing before others due to complex on account of the disfiguration caused to her face due to the fractures sustained by her in the accident. It is very difficult to assess the compensation in such circumstances. The feeling of such persons has to be visualised by the courts while assessing compensation under the heads loss of amenities in life, which includes disfiguration, loss of marriage prospects, mental agony to be suffered by the victim in future and loss of comforts caused to her on account of the injuries. It is very difficult to assess the compensation in the case of non-earning members, especially, children. For a child, the best part of his life is yet to come. This was so held in the decision reported in **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and another** (2013(3) KLT 815). In that decision, the decision in **R.D.Hattangadi v. M/s.Pest** MACA No.1462/11 7 ## **Control (India) Pvt Ltd and others** (1995(1) SCC 551) was relied on wherein it was observed as follows : “....while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the amenities in life like difficulty in running, participation in active sports, etc.,damages on account of inconvenience, hardship, discomfort, disappointment, frustration etc., have to be addressed especially in the case of a child victim.” 8. In the present case, though the appellant has crossed her childhood and reached the adolescent age, the above principle has to be kept in mind while assessing compensation. Considering these aspects, apart from the loss of earning capacity caused on account of the disability, the appellant is entitled to get some reasonable compensation under the head loss of amenities in life, which includes in things mentioned in the decision reported in **R.D.Hattangadi** 's case (supra). Considering these aspects, the amount of Rs.45,000/- awarded by the Tribunal under the head loss of amenities in life and disfiguration (Rs.25,000/- for loss of amenities in life and Rs.20,000/- for disfiguration of face) appears to be on the lower side and we feel that that can be enhanced to Rs.1,00,000/- and we award the said amount under that head. MACA No.1462/11 8 Though persuasive arguments were made by the counsel for the appellant to get enhancement of compensation awarded by the Tribunal under other heads, we are not impressed by the same as they appear to be just and proper. So, in all, the appellant will be entitled to get an additional compensation of Rs.76,600/- over and above what has been awarded by the Tribunal, which, the third respondent insurance company is liable to pay with 9% interest from the date of petition till the date of payment. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** ## **K.RAMAKRISHNAN,JUDGE** sta MACA No.1462/11 9 MACA No.1462/11 10