Saiffudin v. A.V. Kamalakshan and ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937** ## **MACA.No. 1330 of 2006 ( )** **-------------------------AGAINST THE AWARD IN OPMV 958/1998 of M.A.C.T., THALASSERY DATED 01-03-2005** ## **APPELLANT/PETITIONER:** **----------------------------------------------** **SRI.SAIFFUDIN,S/O.MUSTAFA, 19 YEARS, THALIPARAMBA AMSOM, POST KUTTIKOLE KANNUR.** **BY ADVS.SRI.PROMY KAPRAKKATT SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.P.K.BEENA** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------------** **1. SRI.A.V.KAMALAKSHAN, S/O.P.K.PODUVAL, ADIYODI HOUSE, KAKKANISSERI PAYYANNUR, KANNUR.** **2. K.P.BALAKRISHNAN,S/O.GOVINDAN, KIZHAKKEPURAYIL HOUSE, KUNHIMANGALAM, PAYYANNUR KANNUR.** **3. M/S. NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, PAYYANNUR, KANNUR.** **R1 BY ADV. SRI.KALEESWARAM RAJ R3 BY ADVS. SRI.VIJU THOMAS SMT.M.MEENA JOHN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vpv** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.No.1330 of 2006 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 10[th] day of March, 2016** ## **JUDGMENT** ## _**K.Ramakrishnan, J.**_ The claimant in O.P.(MV) No.958 of 1998 on the file of the Motor Accidents Claims Tribunal, Thalassery is the appellant herein. The claim petition was filed by the claimant seeking compensation for the personal injuries and disability suffered by him. He was a minor at the time when the accident occurred on 17.9.1997 and the claim petition was filed through next friend. 2. The case of the claimant in the claim petition was that while the injured minor was standing on the side of the road at Kuttikole near Taliparamba, a car with registration No.KL-13/C 2599 came from Kannur side, driven by the second respondent, owned by the first respondent and insured by the third respondent, hit against the injured. He has sustained severe injuries. He was aged only 11 years at the time of the accident. The claim petition was filed claiming a total compensation of Rs.5 Lakhs on various heads. 3. Respondents 1 and 2 filed written statement admitting that they are the owner and driver of the vehicle at the relevant time but ## **M.A.C.A.No.1330 of 2006** ## **-:2:-** denied negligence on the part of the second respondent. According to them, the accident occurred due to the negligence of the injured himself. The vehicle was insured with the third respondent and they are liable to indemnify the insured. The amount claimed under various heads are exorbitant and so they prayed for dismissal of the application. 4. The third respondent filed a written statement and an additional written statement admitting the insurance of the vehicle but denied negligence on the part of the second respondent. They also contended that the amount claimed is exorbitant and disproportionate to the nature of injuries sustained. They prayed for dismissal of the application. 5. The father of the claimant was examined as PW1 and Exts.A1 to A13 were marked on his side. Ext.X1 disability certificate was also marked. No evidence was adduced on the side of the respondents. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of the second respondent and awarded a total compensation of Rs.2,13,227.50, rounded off to Rs.2,13,500/- and directed the third respondent to pay the said amount. The third respondent was also directed to pay interest for the sum of Rs.1,63,250/- at 9% per annum from the date of petition till 31.12.2001 and thereafter at 6% per annum till realisation as also ## **M.A.C.A.No.1330 of 2006** ## **-:3:-** proportionate costs. Out of the said amount, an amount of Rs.1,00,000/- was allowed to be withdrawn by the guardian. Dissatisfied with the quantum of compensation awarded by the Tribunal, the present appeal has been preferred by the appellant/claimant before the Tribunal. 6. Heard Shri Sunil Nair, learned counsel appearing for the appellant, Shri Kaleeswaram Raj, learned counsel appearing for the first respondent and Shri Viju Thomas, learned counsel appearing for the third respondent. 7. In the appeal, the claimant produced additional documents along with I.A.No.303 of 2014 to prove that he was undergoing treatment even after the disposal of the case and those documents were received in evidence allowing the application and they were marked as Ext.A14 to Ext.A17. Learned counsel appearing for the appellant submitted that the appellant is even now undergoing treatment and he has been permanently disabled from doing any work. According to him, the quantum of compensation awarded is very less and the appellant is entitled to enhancement on all other heads. 8. On the other hand, learned counsel appearing for the first respondent as well as the insurance company submitted that being a minor/non-earning member, the tribunal had considered all the aspects and rightly awarded just and proper compensation and no ## **M.A.C.A.No.1330 of 2006** ## **-:4:-** enhancement is required. 9. Since the question of negligence is not in dispute, we are not adverting to the same in this appeal. It is an admitted fact that the injured was a minor aged 11 years at the time of accident and he had sustained a disability of 34% and he had produced Ext.X1 disability certificate to prove this fact as well. In the decision reported in **Master** ## **Mallikarjun v. Divisional Manager, The National Insurance Co.** **Ltd & Anr.** [2013 (3) KLJ 815], the Supreme Court has considered the question of computing compensation in the case of minor children who sustained permanent disability. Considering the fact that it is very difficult to assess compensation in such cases taking a probable monthly income, future prospects, etc., in the decision certain guidelines have been given and it has been observed that if the whole body disability is above 10% and upto 30% - Rs.3,00,000/-, upto 60% - Rs.4,00,000/-, upto 90% - Rs.5,00,000/- and above 90% - Rs.6,00,000/- has to be awarded and for the purpose of awarding a consolidated compensation in the above manner, the pain and suffering already undergone, to be suffered in future, mental and physical shock, hardship, inconvenience, discomfort, etc. and loss of amenities in life on account of permanent disability has to be taken into consideration and a consolidated amount can be awarded taking into all these aspects together. In this case he had suffered a ## **M.A.C.A.No.1330 of 2006** ## **-:5:-** permanent whole body disability of 34% as per the disability certificate issued evidenced by Ext.X1. So applying the above principle, he will be entitled to get a consolidated amount of Rs.4,00,000/- under the heads pain and suffering already undergone, to be suffered in future, mental and physical shock, hardship, inconvenience, discomfort, etc. and loss of amenities in life on account of permanent disability and out of this the amount of Rs.25,000/- awarded by the tribunal under the head pain and suffering and Rs.76,500/- awarded under the head permanent disability have to be deducted. Then the appellant will be entitled to get an additional amount of Rs.2,98,500/- under the above heads. 10. In the same decision it has been held that in such cases, the parents will be suffering some inconvenience and they will be losing some income also for being in the hospital along with the child. In this case, it is seen from the evidence that he had undergone treatment as an inpatient for more than 102 days. Further the documents produced in the appeal namely Ext.A14 to A17 will go to show that he is even now undergoing treatment for the injury sustained as the ulcer caused on account of the injury in the foot has not been healed so far, though more than 19 years have passed after the accident. So considering these aspects, we feel that an amount of Rs.30,000/- can be awarded for discomfort, inconvenience and loss of earnings caused to the ## **M.A.C.A.No.1330 of 2006** ## **-:6:-** parents during the period of hospitalisation. 11. Further the tribunal had awarded only Rs.50,000/- under the head future medical expenses but the subsequent documents produced in the appeal will go to show that he had already incurred Rs.84,000/- towards expenses. Further it shows that he will require further more amounts for future treatment. So considering these aspects, we feel that a consolidated sum of Rs.1,00,000/- more can be awarded under the head future expenses over and above the amount awarded by the tribunal namely Rs.50,000/-. He is not entitled to get enhancement under other heads as the tribunal has awarded just and fair compensation. 12. In all, the appellant/claimant will be entitled to get the sum of Rs.4,28,500/- as additional compensation over and above the compensation awarded by the tribunal, which the third respondent insurance company is liable to pay with 9% interest, excluding the amount of Rs.1,00,000/- namely the future medical expenses awarded by this court, from the date of petition till payment. Four months time is granted to the insurance company to deposit the said amount. If the amount is deposited, 50% of the amount can be disbursed to the appellant and 50% can be deposited in the bank in the name of the appellant for a period of five years with liberty for the appellant to move the tribunal for disbursal of the amount showing reason for the ## **M.A.C.A.No.1330 of 2006** ## **-:7:-** disbursal and if the tribunal is satisfied with the need mentioned, the tribunal is at liberty to pass appropriate orders in that application. If the principal compensation amount awarded by this court exceeds the amount claimed in the claim petition, then the insurance company is directed to issue a cheque in the name of the tribunal for the court fee payable for the excess amount awarded by this court and the balance alone need be deposited in the name of the appellant. The insurance company is directed to issue two cheques, one for the court fee payable for the excess amount awarded by this court over and above the amount claimed in the claim petition for which the court fee was paid and another cheque for the balance amount in the name of the appellant. With the above modification of the impugned order of the tribunal, the appeal is allowed in part and disposed of accordingly. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- ## **K.RAMAKRISHNAN JUDGE** /true copy/ P.A. to Judge ## **kav/vpv**