Rincy v. Manoj, K. Yousuf, United India Insurance Co. Ltd., Kurain, The New India Assurance Co. Ltd.

M.A.C.A.No.1706 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** **MACA.No.1706 OF 2009** **AGAINST THE AWARD IN OPMV 525/2003 DATED 14-11-2008 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/PETITIONER:** **RINCY, AGED 20 YEARS, D/O.K.C.JOSEPH, KAPPILEMAKKEL,, THALAPUZHA PO, MANANTHAVADY TALUK,WAYANAD DISTRICT** **BY ADVS. SRI.N.J.ANTONY SMT.T.J.SEEMA** ## **RESPONDENTS/RESPONDENTS:** - **1 MANOJ, AGE NOT KNOWN, S/O.KUMARAN, MYLAMKUNNATH HOUSE, PARIYARAMKUNNU, PUTHUSSERY,, MANANTHAVADY TALUK,(DRIVER OF BUS NO.KL-12B/5644, D.L.NO.NOT KNOWN)** - **2 K.YOUSUF, AGE AND FATHERS NAME NOT KNOWN. KANHAYI HOUSE, VALERI MANANTHAVADY TALUK,(OWNER OF BUS NO.KL-12B/5644)** - **3 UNITED INDIA INSURANCE CO.LTD KALPETTA POLICE NO.NOT KNOWN.** - **4 KURAIN, AGED 37 YEARS SO.THOMAS PAYIKKATTU, P.O.CHENNALODE,MANANTHAVADY TALUK, (DRIVER CUM OWNER OF THE MOTOR CYCLE NO.KL-12B, 5786.D.L.NOT KNOWN)** - **5 THE NEW INDIA ASSURANCE CO.LTD KALPETTA POLICY NO.NOT KNOWN** - **R1 BY ADV. SRI.SUNNY MATHEW R1 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL R5 BY ADV. SRI.P.MURALEEDHARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1706 OF 2009 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------M.A.C.A.No.1706 of 2009 ------------------------------- ## Dated this the 1st day of March, 2021 ## JUDGMENT The appellant is the claimant in O.P(M.V) 525/2003 on the file of the Motor Accidents Claims Tribunal, Kalpetta. Above claim petition is filed by the appellant claiming compensation under section 166(1)(a) of the Motor Vehicles Act. 2. The case of the appellant can be summarised as follows:- The petitioner, a minor was travelling in a motor cycle as a pillion rider on 01.11.2003 at about 1.45.p.m, from Mananthavady to Chennalode. At that time, when the vehicle reached at L.F.U.P School, Mananthavady, a bus bearing Registration No. KL.12-B/5644 driven by respondent No.1, came from Panamaram side to Mananthavady in a rash and M.A.C.A.No.1706 OF 2009 3 negligent manner, hit against the motor cycle and thereby she sustained serious injuries. She was taken to the various hospitals on different dates. It is contented that the accident occurred due to the rash and negligent driving of bus by Respondent No.1. Respondent Nos. 2 and 3 are the Owner and Insurer of the Bus at the time of the accident. Respondent No.4 was the rider-cum-Owner of the Motor Cycle and Respondent No.5 was the Insurer of the Motor Cycle. The claimant submitted that all the respondents are jointly and severally liable to pay the compensation. 3. To substantiate the case one witness was examined as PW1. Exhibits A1 to A7 were also marked. C1 is the disability certificate. After going through the documents and pleadings, the Tribunal passed an award allowing the petition by granting an amount of Rs. 47,550/- (Rupees forty seven thousand five hundred and fifty only) as compensation with interest at the rate of 6% p.a, from the date of filing of the petition, till payment by respondent Nos. 3 and 5. Aggrieved by the quantum of compensation, this appeal is filed. 4. Heard the learned counsel for the appellant and the M.A.C.A.No.1706 OF 2009 4 learned counsel for the respondent Nos. 3 and 5. 5. Admittedly, there is no appeal filed by the Respondent Nos. 3 and 5, who are the Insurance Companies of the two vehicles. Therefore, they are liable to pay the amount if any enhanced compensation is awarded in this appeal. 6. The main contention of the appellant is that the appellant was a student aged 15 years at the time of accident. As per Ext.C1, the disability is assessed by the medical board as 15%. The counsel relied the judgment of the Apex Court in Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited & Anr. (2013 (3) KLJ 815) and argued that the appellant is entitled an amount of Rs.3 lakh. There is some force in the argument of the counsel for the appellant. In Master Mallikarjun's case the Supreme Court observed like this. “8.It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. and Others[1],(1995 (1) SCC 551), while assessing the non-pecuniary M.A.C.A.No.1706 OF 2009 5 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 loss of 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. For a child, the best part of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non- earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the nonpecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation 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. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc. 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 are of the view that the appropriate compensation on all other heads in addition to the M.A.C.A.No.1706 OF 2009 6 actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 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%.” Admittedly, the appellant was aged 15 years. The medical board certified that he is having a disability of 15% to the whole body. If the disability is above 10% and upto 30% to the whole body, the appellant is entitled to Rs. 3 lakhs as compensation towards pain and sufferings already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort etc and loss of amenities on account of permanent disability. Therefore, the appellant is entitled an amount of Rs.3 lakh on that ground itself. 7. As far as the transport to go to hospital is concerned, an amount of Rs. 700/- is awarded. I think it is to be enhanced to Rs. 1,000/-. 8. Towards damage to clothing and article, only Rs. 200/is allowed. That is to be enhanced to Rs. 1,000/-. M.A.C.A.No.1706 OF 2009 7 9. The bystanders expenses also to be increased. She was in hospital for 18 days. Therefore, bystanders expenses is to be enhanced to Rs. 2,700/- (18x150) instead of Rs. 500/- . 10. Similarly, the amount awarded for extra nourishment is also to be increased to Rs. 2000/- instead of Rs.1000/-. 11. Hence the total enhanced amount that the appellant is to be entitled is summarised below:- |Sl.<br>No.|Head under which compensation is<br>claimed|Enhanced<br>amount| |---|---|---| |1|Transportation to hospital|Rs.300| |2|Damage to clothing|Rs.800| |3|Bystanders expenses|Rs.2200| |4|Pain and suffering already undergone<br>and to be suffered in future, mental and<br>physical shock, hardship,inconvenience,<br>and discomforts, etc. and loss of<br>amenities in life on account of<br>permanent disability.|Rs.300000| |5|Extra Nourishment|Rs.1000| ||Total|Rs.304300| Therefore, this appeal is allowed in part and the appellant is entitled for an enhanced compensation of Rs.3,04,300/- M.A.C.A.No.1706 OF 2009 8 (Rupees Three lakh four thousand three hundred only) with interest at the rate of 6% p.a., from the date of the petition till realisation. Respondent Nos. 3 and 5 shall pay the amount equally. Sd/- ## P.V. KUNHIKRISHNAN JUDGE avs/al/-