Raseena (minor) through mother and next friend v. E.M. Samuel and The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 MACA NO. 2546 OF 2012** **AGAINST THE AWARD IN OP(MV) 812/2003 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL ,ATTINGAL** ## **APPELLANT/PETITIONER:** RASEENA AGED 18 YEARS D/O. RAMLA BEEVI, RAJEENA HOUSE,NEAR KUTTICHAL JUNCTION, KUTTICHAL, (VIA) KATTAKKADA, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.I.J.AUGUSTINE SRI.BENOJ C AUGUSTIN SRI.PRATHAP PILLAI SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.SWATHY DAS ## **RESPONDENTS/RESPONDENTS:** 1 E.M.SAMUEL S/O. LATE OUSEPH MARKOSE, HOUSE NO. V/331, SMITHA BHAVAN, SRIVILAKOM, NAVATTA, ARUVIKKARA.P.O., NEDUMANGADU, THIRUVANANTHAPURAM. 2 M/S. THE NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, PLOT NO. 1345/C2, NEAR MUNICIPAL BUS STAND, MAIN ROAD, ATTINGAL, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.R.S.SARAT SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2546 OF 2012** **2** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.812/2002 on the file of the Motor Accidents Claims Tribunal, Attingal. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant, who was a minor child at the time of the accident, through her mother and nextfriend had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, seeking compensation on account of the injuries sustained to her in an accident on 8.4.2003. It was her case that, on the above-said day, while she was playing with her friend in the court-yard of her house, a car bearing Reg. No.KRT-4028 (car), due to the negligence of the 1[st] respondent, hit against the compound wall and the wall fell on the appellant and her friend. Both of them **MACA NO. 2546 OF 2012** **3** sustained multiple injuries. The appellant suffered a Type III 'B' open compound comminuted fracture of both bones of the left leg below the middle third part and lower third junction. The appellant was treated as an inpatient for a period of 45 days in two spells at the S.A.T. Hospital, Thiruvananthapuram and the Specialists' Hospital, Ernakulam. She had to undergo amputation below her knee. She was a fourth standard student in the Government L.P. School, Paruthippally. The car was owned by the 1st respondent and insured with the 2[nd ] respondent. The appellant claimed a compensation of Rs.22,81,500/from the respondents, which claim was limited to Rs.20,00,000/-. 3. The appellant's friend had also filed O.P(MV) No.818/2013 against the respondents, before the same Tribunal, seeking compensation. 4. The 1[st] respondent did not contest both the claim petitions. **MACA NO. 2546 OF 2012** **4** 5 The 2[nd] respondent – insurer of the car - had filed separate written statements denying the allegations in the claim petitions. However, the 2[nd] respondent admitted that the car had a valid insurance coverage. The 2[nd] respondent stated that the accident occurred due to the negligence of the appellant and her friend and that the compensation claimed was excessive. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions produced and marked Exts.A1 to A39 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to recover from the 2[nd] respondent an amount of Rs.4,59,884/- with interest. **MACA NO. 2546 OF 2012** **5** 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.Nagaraj Narayanan, the learned counsel appearing for the appellant/petitioner and Sri.VPK Panicker, the learned counsel appearing for the 2nd respondent-insurer. 11. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 12. Ext.A4 charge-sheet filed by the Nedumangadu Police in Crime No.219/2003 proves that the accident occurred due to the negligence of the 1[st] respondent. Admittedly, the 2nd respondent was the insurer of the car. The 2[nd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. **MACA NO. 2546 OF 2012** **6** 13. The appellant had stated in the claim petition that she was a fourth standard student in the Government L.P. School, Paruthipally. 14. In **Kurvan Ansari Alias Kurvan Ali v. Shyam Kishore Murmu** [(2021) SCC OnLine SC 1060], the Hon'ble Supreme Court while considering the case of death of a minor child, fixed the notional monthly income of the child at Rs.3,000/- per month for a claim under Section 163 of the Motor Vehicles Act. Likewise, in **Kishan Gopal and Another v. Lala and others** [(2014) 1 SCC 244], the Hon'ble Supreme Court has fixed the notional annual income of a minor child at Rs.30,000/- and adopted the multiplier of '15'. Similarly, in **Master Mallika Arjun v. Divisional Manager, National Insurance Co.Ltd and another** [(2014) 14 SCC 396], the Hon'ble Supreme Court has held that the children who suffer disability of above 50%, a consolidated amount of Rs.4,00,000/- has to be paid as compensation. **MACA NO. 2546 OF 2012** **7** 15. In the instant case, it is proved as per Ext.A10 disability certificate that the appellant's left leg below the knee had to be amputated. The Asst.Professor of Orthopaedics has certified that the appellant has a permanent partial disability of 32%. 16. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has categorically held that, what needs to be looked into in a case of injury, is the functional disability of the injured-claimant. 17. Going by the Item No.21 in Part II of Schedule -I of the Workmen's Compensation Act, 1923, the permanent disability of a person who has undergone amputation below the knee is fixed at 50%. Therefore, I have no hesitation to fix the functional disability of the appellant at 50%. ## **Future prospects** 18. In **Syed Sadiq and others v. Divisional Manager, United India Insurance Company Limited** **MACA NO. 2546 OF 2012** **8** [(2014) 2 SCC 735], followed by **V.Mekala v. Malathy & Another** [(2014) 11 SCC 178] and **Pappu Deo Yadav v. Naresh Kumar & Others** [2020 SCC Online SC 752], the Hon'ble Supreme Court has consistently held that in a case of serious injury, the injured-claimant is also entitled to future prospects. In the case at hand, as the appellant has suffered amputation below her left knee, I hold that she is entitled to future prospects. ## **Loss due to disability** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.2,500/-, her functional disability at ‘50%’, the multiplier at '15' and future prospects at 40%, I award her an amount of Rs.3,15,000/- towards ‘loss due to disability’ instead of Rs.67,500/- awarded by the Tribunal. **MACA NO. 2546 OF 2012** **9** ## **Other heads of compensation** 20. With respect to the compensation awarded by the Tribunal under the heads, namely, transport, clothing, bystander expenses, extra-nourishment, medical expenses, pain and sufferings, loss of amenities, future treatment and hotel bills, I find the same to be reasonable and just. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.2,56,600/- (enhancement of compensation under the head 'loss due to disability') with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting the interest for a period of 855 days, i.e. the period of delay in filing the appeal and as ordered by this Court on 20.10.2021 in C.M.Appli. No.1 of 2012, and a cost of Rs.15,000/-. The 2[nd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty months from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being **MACA NO. 2546 OF 2012** **10** deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. ma/24.2.2022 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**