Shamsad (Minor) v. Mohammed Ali P.H. and N. Suresh Kumar and The New India Assurance Co. Ltd., MACA No.1847 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **MACA.No.1847 OF 2008** **AGAINST THE AWARD IN OP(MV) No.67/2003 DATED 31-03-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **SHAMSAD (MINOR) SON OF SHALI ALIAS SHAJAHAN, AGED 11 YEARS, REPRESENTED BY GUARDIAN SHAJI ALIAS SHAJAHAN, THURUTHUMMEL HOUSE,, PARAPPURAM PERUMBAVOOR, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.K.K.MOHAMED RAVUF** ## **RESPONDENTS/RESPONDENTS:** - **1 MOHAMMED ALI.P.H. SON OF HANEEF RAWTHER 121, S.S.KOIL STREET, POLLACHI DISTRICT, COIMBATORE, TAMILNADU-642001.** - **2 N.SURESH KUMAR SON OF P.NACHIMUTHU HOUSE NO.V/39,CHETTIYUM KALATHUR VILLAGE, POLLACHI TALUK, COIMBATORE DISTRICT, TAMILNADU.** - **3 THE NEW INDIA ASSURANCE CO.LTD SREEVALLI BUILDINGS, ANICODE JUNCTION, CHITTOOR,, PALAKKAD DISTRICT, KERALA STATE.** ## **BY ADV. SRI.N.S.MUHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1847/08 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.67 of 2003 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 26.11.2002, while he was pedalling a bicycle through public road. At the place of accident, he was knocked down by a car bearing registration No.TNN-2811 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant, who was then a minor aged 11 years, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex-parte. The 2[nd] respondent was removed from the party array as per order dated 02.08.2006 in I.A.No.3761 of 2006. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the offending vehicle; M.A.C.A.No.1847/08 3 however, denying negligence alleged against the 2[nd] respondent driver. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. The doctor who issued Ext.A8 disability certificate was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the offending vehicle by its driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. On a finding that, at the time of accident, the driver of the offending vehicle was having no valid driving licence, the 3[rd] respondent insurer was given recovery right to proceed against the 1[st] respondent owner to recover the amount of compensation paid to the claimant. Under various heads, the Tribunal awarded a total compensation of Rs.85,390/-, which was rounded off to Rs.85,400/- together with interest at the rate of 7% per annum from the date of petition till 30.6.2007 and thereafter at 7.5% M.A.C.A.No.1847/08 4 per annum till realisation from respondents 1 and 3 jointly and severally. The insurer was directed to satisfy the award within a month from the date of award and then proceed against the 1[st] respondent owner. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent was dispensed with, by the order of this Court dated 17.10.2019. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 8. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and M.A.C.A.No.1847/08 5 reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 9. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. In the instant case, the compensation awarded by the M.A.C.A.No.1847/08 6 ## Tribunal under various heads reads thus; ||The compensation awarded<br>under<br>various heads|Amount awarded<br>Rs.| |---|---|---| |1|Treatment expenses|40,640/-| |2|Transportation expenses|1,000/-| |3|Extra nourishment|1, 000/-| |4|Damage to clothings|250/-| |5|Pain and suffering|18,000/-| |6|Loss of amenities|10,000/-| |7|Attendant's charges|1,000/-| |8|Compensation for disability|13,500/-| ||Total|**85,390/-**| 11. The accident occurred on 26.11.2002. At the time of accident, the appellant was a minor aged 11 years. The document marked as Ext.A5 is the accident register cum wound certificate issued from the Medical Trust Hospital, Kochi and Ext.A6 is the discharge summary. As per Ext.A5, in the accident, the appellant sustained contusion right eye; multiple contused abrasions on forehead, right cheek, nose and left thigh; puncture wound over left thigh; deformity over left femur; lacerate wound over left leg with tenderness. There was evidence of fracture left femur and left tibia. The appellant had undergone inpatient treatment for a period of 15 days. Open reduction and internal fixation of fracture was done under general anesthesia. X-ray of M.A.C.A.No.1847/08 7 left femur, pelvis and left leg was taken, which showed sub trauchanteric fracture shaft of femur and undisplaced fracture shaft to tibia M/3[rd] . The appellant was on long leg cast left lower limb and he was advised to take non-weight bearing crutch walking. Ext.A6 discharge summary would show that the appellant was admitted in the hospital on 26.11.2002 and emergency wound debridement and ORIF of left subtrochanteric shaft fracture with 6 holed 4.5 DCP were done under general anaesthesia on 27.11.2002. SR done LL cast given on 10.12.2002 and discharged on 10.12.2002. Ext.A7 series are medical bills for a total sum of Rs.40,640/-. 12. Ext.A8 is the disability certificate issued by PW1 doctor of Taluk Head Quarters Hospital, Perumbavoor certifying a permanent disability of 12%, on account of the injuries sustained in the accident. PW1 has stated that flexion and extension motion of hip is limited to an arc from 90 degree to 180 degree line and on account of this the disability for specific body part is 7% and to that of whole body is 3%. Abduction and adduction and extension and flexion limited to an arc from 25 degree abduction to 180 degree line and on account of the disability to M.A.C.A.No.1847/08 8 specific body part is 9% and to that of whole body is 3%. Likewise, the rotation extension of flexion and extension motion limited to an arc from 15 degree internal rotation to 180 degree line and due to that the disability to the specific body part is 12% and to that of whole body is 4%. Further the petitioner has got 1 cm. lengthening of left leg and it affects 2% disability to his whole body. Thus the total disability was fixed as 12% in Ext.A8. The Tribunal noticed that the petitioner sustained fracture to his left limb only. So the total 12% disability assessed in Ext.A8 will not affect his whole body. Further he is a minor boy aged only 11 years and major changes will take place on his body when grows up. In his growing stages the bones will also expand. So the limitations, adduction and other restrictions will be improved. Therefore, the Tribunal took the percentage of whole body disability as 6%. Considering the nature of injuries sustained and the disabilities noted in Ext.A8, the permanent whole body disability of the appellant is taken in this appeal as 10%, for the purpose of awarding compensation under the head disability. 13. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC** M.A.C.A.No.1847/08 9 **396]** , the Apex Court laid down the principles regarding payment of compensation for injuries sustained by children, the permanent whole body disability of the appellant can be taken as 10% for the purpose of awarding compensation under the head disability. resulting permanent disability. In the said decision, the Apex Court held that in the case of children suffering disability on account of motor accident, the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick. Paragraph 12 of the said decision reads thus; “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 actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% M.A.C.A.No.1847/08 10 and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 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%. Appellant had a longer period of hospitalisation for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:- |compensation as follows:-|| |---|---| |Head|Compensation<br>amount| |Pain and suffering already undergone and to<br>be suffered in future, mental and physical<br>shock,<br>hardship,<br>inconvenience<br>and<br>discomforts and loss of amenities in life on<br>account of permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the period of<br>hospitalisation.|Rs.25,000/-| |Medical and incidental expenses during the<br>period of hospitalisation for 58 days.|Rs.25,000/-| |Future medical expenses for correction of the<br>malunion of fracture and incidental expenses<br>for such treatment.|Rs.25,000/-| |**TOTAL:-**|**Rs.3,75,000/-**| 14. Going by the law laid down by the Apex Court in **Master Mallikarjun's case (supra)** , for permanent disability up to 10%, the compensation under the head _pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life on account of permanent disability_ shall be M.A.C.A.No.1847/08 11 Rs.1,00,000/-. In the instant case, the permanent disability of the appellant assessed in Ext.A8 disability certificate is taken as 10% in this appeal. Therefore, the appellant is entitled for a sum of **Rs.1,00,000/-** as compensation under this head. 15. In **Mallikarjun's case** , the injured had undergone inpatient treatment for a period of 58 days. Therefore, under the head _discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation,_ the Apex Court awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the inpatient treatment the appellant had undergone for a period of 15 days, a sum of **Rs.15,000/-** can be granted as compensation under this head. 16. In **Mallikarjun's case** , under the head _medical and incidental expenses during the period of hospitalisation_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, Ext.A7 series of medical bills are for a sum of Rs.40,640/-. The appellant had undergone inpatient treatment for a period of 15 days. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of Rs.53,140/- (12,500 + 40640). M.A.C.A.No.1847/08 12 17. In **Mallikarjun's case** , under the head _future medical expenses for correction of the malunion of fracture and incidental expenses for such treatment_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, the pleading and materials on record would not indicate malunion of fracture or requirement for future treatment. Therefore, the appellant is not entitled for any amount under this head. 18. In the result, the total compensation in O.P.(MV) No.67 of 2003 is re-fixed as Rs.1,68,140/- (1,00,000 + 15,000 + 53,140) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.82,750/-** (Rupees Eighty Two Thousand Seven Hundred and Fifty only) [1,68,140 - 85,390] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. Payment of additional compensation granted M.A.C.A.No.1847/08 13 in this appeal shall be made to the appellant/claimant as per the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **==> picture [50 x 9] intentionally omitted <==** **ANIL K.NARENDRAN** **JUDGE** csl