Rajesh v. V. M. Abdul Kareem, Madhusoodhanan and The New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 28TH DAY OF JULY 2016/6TH SRAVANA, 1938** ## **MACA.No. 451 of 2007 ( )** **------------------------AGAINST THE AWARD IN OPMV 485/2002 of MACT,TSR DATED 11-11-2005** **APPELLANT/1[st] PETITIONER::** **----------------------------------------** **RAJESH, S/O.RAJAGOPALAN, RESIDING AT KALARIKKAL HOUSE,, P.O.VELUTHUR, VELUTHUR ROAD, THRISSUR.** **BY ADVS.SRI.T.C.SURESH MENON SRI.K.R.SREEKANTH SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** ## **1. V.M. ABDUL KAREEM,** **RESIDING AT VALIYAKATH HOUSE,, P.O.THRITHALLOOR, THRISSUR DISTRICT.** **2. MADHUSOODHANAN, S/O.SANKARAN, RESIDING AT PULIKKATHARA HOUSE,, CHETTUPUZHA, OLARI VILLAGE, THRISSUR DISTRICT.** **3. THE NEW INDIA ASSURANCE COMPANY LTD., S.S.N.SHOPPING COMPLEX, TEMPLE ROAD,, TRIPRAYAR, P.O.NATTIKA, THRISSUR DISTRICT.** ## **R3 BY ADV. SRI.P.K.BABU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **vpv** ## **P.N. Ravindran & A. Muhamed Mustaque, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.451 of 2007** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] July, 2016** ## **JUDGMENT** ## **P.N. Ravindran, J.** The appellant is the claimant in O.P.(MV) No.485 of 2002 on the file of the Motor Accidents Claims Tribunal, Thrissur, a petition filed under section 166 of the Motor Vehicles Act, 1988 claiming the sum of Rs.3,00,000/- as compensation for the injuries sustained by him in a motor accident that took place on 21.11.2001. The claimant who was then a minor aged 16 years, had in the claim petition instituted through his mother and guardian averred that while he was riding a bicycle along the Thrissur - Kanjani public road, a stage carriage bearing reg. No.KL8/5071 owned by the first respondent and driven by the second respondent collided with the bicycle and in that accident he sustained serious injuries. The claimant contended that the accident took place on account of the rash and negligent driving of the second respondent. It was contended that the offending motor vehicle owned by the first respondent was covered by a valid policy of insurance issued by the third respondent and that the respondents are jointly and severally liable to compensate the claimant. 2. Though notice was served, the owner and driver of the stage carriage did not enter appearance, with the result, they were set ex-parte. The third respondent insurer entered appearance and MACA 451/2007 2 filed a written statement contending that there was no negligence on the part of the second respondent, the driver of the stage carriage. It also contended that the compensation claimed is excessive and exorbitant. 3. Before the tribunal, the claimant who had by the time of trial attained majority, was examined as PW1 and Exts.A1 to A12 were produced and marked on his side. No evidence oral or documentary was adduced on the side of the respondents. After considering the rival contentions, the tribunal held, relying on the police records, more particularly Ext.A5 charge sheet that the accident took place on account of the rash and negligent driving of the second respondent. The tribunal also held relying on Ext.A2 wound certificate issued from West Fort Hospital, Thrissur that in the accident which took place on 21.11.2001, the claimant had sustained serious injuries as stated in the claim petition. The tribunal thereafter proceeded to award an aggregate sum of Rs.77,750/- as compensation as detailed below: Transport to hospital - Rs. 2,000/Extra nourishment - Rs. 1,000/Damage to clothing & articles- Rs. 500/Medical expenses - Rs.29,000/Bystander's expenses - Rs. 1,000/Pain and suffering - Rs.15,000/Loss of earning power - Rs.10,000/Loss of amenities - Rs. 8,000/Permanent disability - Rs.11,250/- Total --------------- Rs.77,750/======== MACA 451/2007 3 4. In view of the fact that the third respondent insurer had not pleaded or proved breach of policy conditions, the policy of insurance being admitted, it was directed to satisfy the award. The claimant has, dissatisfied with the quantum of compensation awarded by the tribunal, filed this appeal. 5. We heard Sri Nimod, learned counsel appearing for the appellant. We have also gone through the pleadings and the materials on record. The fact that a motor accident took place on 21.11.2001 on account of the negligence of the second respondent, the driver of a stage carriage insured with the third respondent and in that accident the claimant sustained serious injuries, has been found in favour of the claimant by the tribunal. The owner, driver and insurer have no dispute about the said fact. The victim was on the relevant date, a minor aged 16 years. The tribunal has awarded a total sum of Rs.77,750/- as compensation under various heads including the sum of Rs.29,000/- awarded under the head medical expenses. Ext.A11 disability certificate issued by the Assistant Professor, Department of Orthopaedics, Medical College, Thrissur discloses that even as on 3.1.2005, more than 3 years after the accident, the claimant had pain in the right knee, stiffness of the right knee joint, difficulty in running and squatting and also occasional instability in the right knee besides recurrent headache. It is stated in Ext.A11 that on examination of the claimant it was MACA 451/2007 4 found that he has malunited fracture lateral tibial condyle with slight depression in articular surface, that he has grade I anterior cruciate ligament laxity in the right knee, that he has mild stiffness of the right knee and that as against the normal rotation of movement, ie. 0 - 140[0] , in the case of the claimant, it is 0 - 120[0] . It is also stated that he is likely to have post traumatic arthritis of the left knee as he has malunited intra-articular fracture of the tibial condyle right. The doctor has in Ext.A11 disability certificate, certified that the claimant has a whole body disability of 11%. Though the authenticity and genuineness of Ext.A11 was not seriously disputed, the motor accidents claims tribunal held, on a wrong appreciation of Ext.A11 that as the disability is confined to the right leg, the whole body disability would be only 5%, namely half of the disability referred to in Ext.A11. In coming to the said conclusion, the tribunal lost sight of the fact that in Ext.A11, the disability assessed is whole body disability and not disability of the right leg. In such circumstances, we are of the considered opinion that the tribunal ought to have awarded compensation for permanent disability based on Ext.A11 disability certificate. ## 6. The Apex Court has in **Master Mallikarjun v. Divisional Manager, National insurance Company Ltd. and another** **[2013(3)KLJ]** stated that a child cannot be equated to a non earning person and that in case of child victims the compensation MACA 451/2007 5 awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability and that the compensation for disability should take care of all the non-pecuniary damages. The Apex Court also held that where the whole body disability is above 10% and upto 30%, the sum of Rs.3,00,000/- (Rupees three lakhs only) should be the appropriate compensation. It is also held that the said amount should take care of the compensation for pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, discomfort, disappointment, frustration etc. and loss of amenities on account of permanent disability. In the case on hand, the claimant has, as stated in Ext.A11, suffered 11% whole body disability. We are, therefore, of the considered opinion that he is entitled to be awarded the sum of Rs.3,00,000/- (Rupees three lakhs only) as compensation for permanent disability. Going by the principles stated by the Apex Court in **Mallikarjun** ( _supra_ ) the appellant/claimant can in addition claim compensation for medical expenses and compensation for loss of earnings to parents and also future medical expenses. Though the Apex Court has not in the said decision held that the victim would be entitled to compensation for loss of studies, having regard to the fact that the claimant in the instant case had lost one academic year on account of the injuries, as spoken to by him when MACA 451/2007 6 examined as PW1, we are of the opinion that he is entitled to compensation for disruption of studies besides compensation for medical expenses. It has come out in evidence that the parents of the claimant had to expend a sum of Rs.29,000/- (Rupees twenty nine thousand only) towards medical expenses. The tribunal has awarded the said amount as compensation. The tribunal has not granted any amount as compensation towards disruption of studies. Having regard to the admitted fact that the claimant lost one academic year (2001-2002) on account of the accident, we deem it appropriate to award a lump sum amount of Rs.25,000/- (Rupees twenty five thousand only) as compensation under that head. The appellant has not proved that on account of his hospitalization and the injuries sustained, his parents had suffered any loss of earnings. It is therefore not appropriate to award any compensation under that head. We find no acceptable evidence as to the expenditure which is likely to be incurred for future treatment. We therefore, find any reason to award compensation under the said head also. 7. We accordingly award to the appellant/claimant an aggregated sum of Rs.3,54,000/- (Rupees three lakhs fifty four thousand only) in the place of the sum of Rs.77,750/- awarded by the tribunal. The third respondent insurer shall deposit the said amount along with interest at 9% per annum from the date of petition till the date of deposit, within 3 months from today. MACA 451/2007 7 Needless to say, if any amount has been deposited pursuant to the impugned award, the said amount shall be given credit to, while computing the amount payable under this award. On the insurer depositing the amount payable under this award, one half of the amount deposited shall be disbursed to the claimant and the balance amount shall be kept in fixed deposit in a nationalized bank in his name for a period of two years. No costs. ## **(P.N. Ravindran, Judge)** ## **(A. Muhamed Mustaque, Judge)** **kav/DG**