Salmanual Fariz (Minor) v. The Branch Manager, New India Assurance Company Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, ``` ``` 1943 ``` ``` MACA NO. 1808 OF 2012 ``` ``` AGAINST THE AWARD DATED 29.10.2011 IN OPMV 367/2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA ``` ## `APPELLANT/PETITIONER:` ``` SALMANUAL FARIZ (MINOR) DATE OF BIRTH 15-01-2003, S/O. RASHEED V.P., REPTD, BY HIS NEXT FRIEND AND GUARDIAN FATHER, RASHEED V.P., AGED 41 YEARS, S/O. KUNHUMUHAMMED, VALIYAPARAMBIL HOUSE, PARASSERIVAYAL, THURKEY, KALPETTA POST, VYTHIRI TALUK. ``` ## `BY ADV SMT.CELINE JOSEPH` ## `RESPONDENT/RESPONDENT NO.3:` ``` THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., III CROSS, R.P.ROAD, EXTENTION, NANJANGUD-571301. ``` ``` BY ADV JOY JOSEPH (MANAYATHU) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1808/2012 -:2:- Dated this the 15[th] day of December,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.367/2009 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondent in the appeal was the third respondent-insurer before the Tribunal. As the respondent has admitted the insurance policy and its liability, appellant has not impleaded the respondents 1 and 2 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner, who was a six year old child, had through his next friend and father filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 05.02.2009. It was his case that, on the above date, while he was M.A.C.A.No.1808/2012 -:3:- travelling in an autorickshaw bearing registration No.KL-12/6696 from Kalpetta to Muttil, when the vehicle reached a place named Kainatty, a lorry bearing registration No.KA-10/1084(lorry), driven by the first respondent in a rash and negligent manner, hit the autorickshaw. The petitioner sustained grievous injuries, including left frontal extradural hemorrhage, diffuse axonal injury, small left front extradural hemmorhage with undisplaced left frontal bone fracture. He was treated at the Leo Hospital, Kalpetta and, thereafter, at MIMS Hospital, Kozhikode, from the date of accident till 21.03.2009, and again from 03.04.2009 to 06.04.2009 and again from 25.04.2009 to 28.04.2009. His treatment is still continuing. The petitioner was a student. The lorry was owned by the second respondent and insured with the third respondent. Hence, the petitioner claimed an amount of Rs.13,11,000/-, as compensation from the respondents, which claim was limited to M.A.C.A.No.1808/2012 -:4:- Rs.10,00,000/-. 3. The driver of the autorickshaw, who also sustained injuries, in the same accident, also filed O.P. (MV)No.366/2009 before the very same Tribunal, seeking compensation from the respondents. 4. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent had filed separate written statements in the two claim petitions contending that the accident occurred due to the negligence of the petitioner in O.P.(MV)No.366/2009. The third respondent also stated that the compensation claimed was excessive. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioner was examined as PW1 and he produced and marked Exts.A1 to A12 in evidence. The disability certificate issued by the Medical Board was marked as Ext.C1. The respondents did not let in any M.A.C.A.No.1808/2012 -:5:- ## evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award allowed the captioned claim petition, by permitting the petitioner to realise from the third respondent an amount of Rs.3,93,900/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and proportionate cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Smt. Celine Joseph, the learned counsel appearing for the appellant/petitioner and Sri. Joy Joseph, the learned counsel appearing for the respondent/third respondent-insurer. 11. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? M.A.C.A.No.1808/2012 -:6:- ## **Negligence and liability:** 12. Ext.A4 chargesheet filed by the Kalpetta Police in Crime No.44/2009, proves that the accident happened due to negligence of the first respondent. Undisputedly, the second respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to the contrary to discredit Ext.A4 charge-sheet. Similarly, the third respondent has not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Compensation for loss of earnings:** 13. The learned counsel appearing for the petitioner placed strong reliance on the decision of the Hon’ble Supreme Court in **Kajal v. Jagdish Chand and Ors.** [(2020) 4 SCC 413] to drive home her contention that the petitioner in the present case was M.A.C.A.No.1808/2012 -:7:- only a six year old child at the time of accident and had sustained serious injuries like **Kajal** (supra). Therefore, the petitioner is similarly placed like **Kajal** , and the method adopted by the Hon’ble Supreme Court for computing the ‘loss of earnings’ in **Kajal** (supra) shall be adopted to fix the ‘loss of earnings’ of the petitioner. 14. The above submission was vehemently opposed by the learned counsel appearing for the respondent-third respondent, who contended that in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)], the Constitutional Bench of the Hon’ble Supreme Court has categorically laid down the law how compensation has to be adopted, which governs the field, and there is no justification in following the yardstick in **Kajal** (supra). Hence, the multiplier in **Pranay Sethi** (supra) has to be followed to award ‘loss of earnings’. 15. Ext.A9 discharge summary issued by the M.A.C.A.No.1808/2012 -:8:- Hospital shows that the petitioner was admitted in the hospital on 05.02.2009 in an unconscious state. His pupils were equal and reacting sluggishly to light and there was a contusion on the right supra orbital area. The CT scan of the brain of the petitioner showed that he had a small left frontal extradural hemorrhage and mild increase in the left frontal extradural hemorrhage compared to curious study. As the petitioner presented himself with a glasgow coma scale 4/15, he was initially ventilated and then gradually weaned of the ventilator. As a sensorium remain low Tracheotomy was done under general anastasia on 14.02.2009 and then he was transferred out of the Intensive Care Unit(ICU). His level of consciousness gradually improved, but he had left hemiparesis, which was persisting. He was recommended to review in neurology surgery outpatient unit, three days in a week, for a period of one month. 16. Pursuant to the direction of the Tribunal, the M.A.C.A.No.1808/2012 -:9:- petitioner was referred to Medical Board attached to the Medical College Hospital, Calicut. The Medical Board by Ext.C1 permanent disability certificate has found that due to the left hemiparesis (partial paralysis on one side) and an injury to right cerebellum, the petitioner has 60% permanent disability. The Tribunal accepted the assessment of permanent disability in Ext.C1; but fixed his notional monthly income at Rs.1,250/- and adopted the multiplier at ‘15’, and awarded an amount of Rs.1,35,000/- as compensation for ‘loss of earnings’. 17. In **Kajal** (supra), the Hon’ble Supreme Court fixed the notional monthly income of a 12 year old girl, following the minimum wages payable to a skilled worker, at Rs.4,846/-, adopted the multiplier of ‘18’ and added 40% towards ‘future prospects’. 18. In the light of the serious injuries sustained by the petitioner, who is assessed to be suffering from left hemiparesis and injury to right cerebellum and M.A.C.A.No.1808/2012 -:10:- peculiar facts and circumstances of the case at hand, which is an exceptional one, I do not find any reason not to apply the formula in **Kajal** (supra) to the case at hand. 19. Consequently, I fix the notional monthly income of the petitioner at Rs.4,846/-, adopt the multiplier at ‘18’, fix his ‘functional disability’ at 60%, and also award 40% towards ‘future prospects’. Resultantly, the petitioner is entitled to an amount of Rs.8,79,258/- towards ‘loss of earnings’, instead of Rs.1,35,000/- awarded by the Tribunal. ## **Bystander expenses and Extra Nourishment:** 20. The petitioner was treated as an inpatient for a period of 52 days. The Tribunal has awarded an amount of Rs.5,200/- each towards ‘bystander expenses’ and ‘extra nourishment’ at the rate of Rs.100/- per day. The amounts awarded under the said heads are on the lower side. 21. Taking into account the fact that the accident M.A.C.A.No.1808/2012 -:11:- occurred in the year 2009, I award the petitioner an amount of Rs.250/- per day for a period of 52 days for ‘By-stander expenses’ which works out to Rs.13,000/and Rs.150/- per day for a period of 52 days for ‘Extra Nourishment’ which comes to Rs.7,800/- ## **Pain and sufferings and Loss of Amenities:** 22. The petitioner had claimed an amount of Rs.50,000/- towards ‘pain and sufferings’ and Rs.50,000/- towards ‘inconvenience to life’. The Tribunal awarded an amount of Rs.15,000/- towards ‘pain and sufferings’ and Rs.5,000/- toward ‘loss of amenities’. 23. On a consideration of the fact that the petitioner was only a six year old child, that he has sustained functional disability of 60% with left hemiparesis and an injury to the right cerebellum, that he was treated as an inpatient for 52 days and is still continuing his treatment, I hold that the petitioner is entitled to an amount of Rs.50,000/- each under the M.A.C.A.No.1808/2012 -:12:- heads ‘pain and sufferings’ and ‘loss of amenities’. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 25. On a overall re-appreciation of the pleadings, materials on record, especially the law laid down by the Hon’ble Supreme Court in **Kajal** (supra), and taking into account the extra-ordinary circumstances of the case, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount awarded<br>by the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport|5,000|5,000| |2|Damage<br>to<br>clothing|500|500| |3|Bystander<br>expenses|5,200|13,000| |4|Extra nourishment|5,200|7,800| |5|Medical expenses|2,23,000|2,23,000| M.A.C.A.No.1808/2012 -:13:- |6|Pain and sufferings|15,000|50,000| |---|---|---|---| |7|Loss of amenities|5,000|50,000| |8|Loss<br>due<br>to<br>disability|1,35,000|7,89,258| ||**Total**|**3,93,900**|**11,38,558**| 26. Even though the petitioner had claimed only claimed an amount of Rs.10,00,000/- as compensation, I have awarded him more compensation than what is claimed in the claim petition, following the principle adopted by the Hon’ble Supreme Court in **Kajal** (supra), and taking note of the facts and circumstances of the case at hand. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 SC] and **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 SC]. In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.7,44,658** with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit, after deducting interest for a M.A.C.A.No.1808/2012 -:14:- period of 215 days i.e., the period of delay in preferring this appeal and as ordered by this Court on 28.09.2021 in C.M.Appln.No.1/2012, and proportionate cost. The respondent/third respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Taking note of the peculiar facts of the case and the fact that the appellant/petitioner would attain majority on 15.01.2022, I direct the Tribunal to immediately release the enhanced compensation with interest and cost to the appellant, in accordance with law, as soon as the amount is deposited, after deducting the petitioner’s liability, if any, towards court fee. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/15.12.21 //True copy/ P.A.To Judge