Shifana Muhammed (minor) through mother Laila v. Jaison, Vincent D. Paul, and The Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** **MACA NO. 1912 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1411/2007 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** SHIFANA MUHAMMED, AGED 10 YEARS (MINOR), D/O.MUHAMMED, KARIKKAYIL HOUSE, CHELAKKODE DESOM, CHELAKKODE VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT, REP. BY MOTHER LAILA. BY ADV. SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** 1 JAISON, AGED 36 YEARS, S/O.CHUMMAR, PALAMUTTAM HOUSE, VELLANGALLUR DESOM, VADAKKUMKARA VILLAGE, THRISSUR DISTRICT, (DRIVER OF BEARING REG.NO.KL-8-Q-7740 BUS), PIN-680518. 2 VINCENT D.PAUL, AGE NOT KNOWN, S/O.ANTONY, THEKKAN HOUSE, P.O.MELOOR, CHALAKUDY, THRISSUR DISTRICT, PIN-680520, (OWNER OF BEARING REG.NO.KL-8-Q-7740 BUS). 3 THE ORIENTAL INSURANCE CO. LTD., MAHESWARI BUILDING, 3RD FLOOR, M.G.ROAD, THRISSUR, PIN-680501, POLICY NO.441100/31/2008/625 PREVIOUS NO.441100/31/2007/629 VALID UP TO 9/5/2007 TO 8/5/2008. BY ADVS. SMT.K.S.SANTHI SRI.GEORGE CHERIAN THIRUVALLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.1912 of 2011** 2 ## **JUDGMENT** This appeal arises out of award dated 30.05.2011 in O.P.(M.V) No.1411/2007, on the file of Motor Accidents Claims Tribunal, Ottapalam. The appellant herein is the original petitioner, where the original respondents before the Tribunal are the respondents. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the Insurance Company. 3. Brief facts of the case: In this case, a minor aged 6 years met with an accident on 04.11.2007 while she was walking from west to east through the side of the road, when she was hit down by a bus bearing registration No.KL-8 Q-7740, alleged to be driven by the 1[st] respondent, the driver of the bus, in a rash and negligent manner. The minor, who was represented by her mother, had **M.A.C.A No.1912 of 2011** 3 approached the Tribunal and claimed compensation to the tune of Rs.8,00,000/- from respondents 1 to 3 since the minor sustained serious injuries. 4. The 3[rd] respondent, Insurance Company filed written statement denying negligence on the part of 1[st] respondent while admitting policy of the vehicle. Quantum of compensation and the age of the appellant also was disputed. 5. Tribunal examined PWs.1 and 2 and marked Exts.A1 to A22 on the side of the appellant. Ext.B1 marked on the side of the Insurance Company. 6. After evaluation of the evidence as against the claim of Rs.8,00,000/-, the Tribunal granted Rs.3,82,550/- as compensation along with 7% interest. 7. It is argued by the learned counsel for the appellant, that the appellant, who now attained majority, sustained grievous injuries and disability as a result of the accident. He ## **M.A.C.A No.1912 of 2011** ## 4 submitted further that acting on Ext.A16, disability certificate produced before the Tribunal showing 35% disability, the Tribunal assessed the disability after fixing the monthly income at the rate Rs.15,000/- per annum. The learned counsel would urge that since the condition of the minor became worse, she was referred to medical board attached to Government Hospital, Thrissur by this Court and as per the certificate, Ext.X1, now produced before this Court, the disability was assessed at 54.875%. He also argued that in view of the high rate of disability, the case of the minor requires reconsideration in the matter of assessment of compensation by applying the ratio of the decision reported in _**Kajal v.**_ _**Jagdish Chand and Others**_ **: (2020) 4 SCC 413** . 8. The learned counsel for the Insurance Company would argue that in _**Kajal's case (Supra)**_ **,** the case of a young girl of 12 years **M.A.C.A No.1912 of 2011** 5 was considered, where the disability was 100%. Therefore, the ratio as such cannot be applied in this case. 9. On perusal of _**Kajal's case (Supra)**_ **,** it could be noticed that a minor girl, aged 12 years, sustained injuries and while dealing with compensation to be granted in the said case, the Apex Court fixed the monthly income at Rs.4,846/- per month considering the fact that the minimum wages payable to the skilled workmen would come to Rs.4,846/- per month. In addition to that marginal increase under other heads also was given in the said case since the disability was 100%. In this case also, the minor sustained very serious injuries as narrated in paragraphs 8 and 9 of the award, which is extracted here under: _(8) The petitioner was a minor, aged 6 years, student, as per the petition. Ext.A2 is the copy of wound certificate issued from Daya General Hospital, Thrissur. The injuries noted are_ **M.A.C.A No.1912 of 2011** 6 _"degloving injury involving left buttock, left thigh extending to perineum with tear anal opening, vaginal orifice and external urinary meatus, Degloving injury, continuous to Rt. thigh and left side outer abdominal wall, contusion on scalp, fracture pelvis”. Ext.A14 is the copy of discharge summary issued from Daya General Hospital, Thrissur. The date of admission was on 4-11-2007 and the date of discharge was on 7-1-2008. The diagnosis noted as "degloving injury buttock". She was re-admitted on 26-22008 and discharged on 4-3-2008. The diagnosis noted as sigmoid colostomy. Again she was admitted on 17-7-2008 and discharged on 18-7-2008. It is noted as viral fever with gastritis. Ext.A15 is the treatment certificate issued from the same hospital. The diagnosis noted as degloving injury thigh, buttock, perineum. Ext.A18 is the certificate regarding future treatment as per which the expenditure required will be around Rs.5,00,000/- Ext.A21 is another discharge summary issued from the same hospital. The date of admission was on 28-12-2010 and the date of discharge was on 4-1-2011 The diagnosis noted as post-traumatic deformity perineum._ _(9) Ext.A16 is the disability certificate_ **M.A.C.A No.1912 of 2011** 7 _issued by Associate Professor & Senior Consultant Surgeon attached to Govt.Medical College Hospital, Thrissur certifying that the doctor examined the petitioner and the disabilities noted are shock and mental agony due to the accident and subsequent surgeries, total damage of the Rt.labiamajora and minora of the vulva due to the degloving injury and repair produced thick scar contracture 10%, scar contracture over the vaginal opening and urethral opening produced urethral structure and scarred vaginal opening 10%, both buttocks are total damaged and hypertrophied scar with contracture, recurrent ulcertation, itching and scar contracture extending down to the thigh restrict the squatting purpose, partial loss of anal opening and damage of external spinter muscle of anal opening leads to incontinence of stool, scar over the abdomen, gluteal regions, both thighs and private parts leads to gross disfigurements, scar contracture, warrant the cosmetic appearance of female and loss of functions practically of the very vital structure the vulva and anal vaginal urethral and anal opening with restrict her normal physiological_ ## **M.A.C.A No.1912 of 2011** 8 _function and as a female her biological function too in future etc., So, the doctor assessed the whole body disability of 35%. Thus, considering injuries noted, I am of the view that whole body disability can be assessed at 25%._ 10. Since the medical board fixed the disability of the appellant herein at 54.875%, I am inclined to fix the same at 55% for the purpose of calculation. Following the ratio in _**Sarla Verma v. Delhi Transport Corporation**_ **:** **(2009) 6 SCC 121,** the multiplier is '15'. It is not in dispute that in cases involved in disability more than 50%, 40% addition towards future prospects is also liable to be given. Therefore, the monthly income for calculating 'loss of disability income' in this case comes to Rs.6,784/- (4,846+40%). Therefore, the 'loss of disability income' is recalculated as follows: **==> picture [380 x 45] intentionally omitted <==** ## **M.A.C.A No.1912 of 2011** 9 the Tribunal. Thus, **Rs.6,04,116/-** more is granted under the head 'loss of disability income'. 14. The Tribunal granted Rs.25,000/- under the head 'pain and sufferings'. In _**Kajal's case**_ _**(Supra)**_ **,** the Apex Court granted Rs.6,00,000/under the head 'pain and sufferings' and 'loss of amenities' together, since the minor was fully laid up in consequence of the accident. But in this case, the disability assessed was 55% and the appellant is not fully laid up. Therefore, I am inclined to grant **Rs.1,00,000/-** more under the head 'pain and sufferings'. 15. Coming to 'loss of marriage prospects', Rs.20,000/- was granted by the Tribunal. In _**Kajal's case (Supra)**_ **,** the Apex Court confirmed grant of Rs.3,00,000/- done by the Tribunal under the head 'loss of marriage prospects'. Since _**Kajal's case (Supra)**_ dealt with 100% disability, in this case the disability come to ## **M.A.C.A No.1912 of 2011** 10 55% and taking note of the fact that as per Ext.A16 and evidence of PW2, the doctor who issued Ext.A16, the 'loss of marriage prospects' insofar as the appellant submitted to be not normal. Therefore, I am inclined to grant **Rs.2,00,000/-** more under the head 'loss of marriage prospects'. 16. The Tribunal granted Rs.20,000/- only under the head 'loss of amenities'. I am inclined to grant **Rs.1,00,000/-** more under the head 'loss of amenities'. 17. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.13,86,666/- as compensation out of which Rs.3,82,550/- was granted by the Tribunal and the balance amount of **Rs.10,04,116/-** (Rupees Ten Lakh Four Thousand One Hundred and Sixteen Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 3[rd] respondent, ## **M.A.C.A No.1912 of 2011** ## 11 Insurance Company from the date of petition till the date of deposit or realisation. 18. The appellant valued the claim at Rs.8,00,000/-. In view of grant of Rs.10,04,116/- in excess of the claim, the appellant is bound to deposit Rs.10,041/- as additional court fee. The Insurance Company is directed to deposit Rs.10,041/- as additional court fee by a separate cheque in favour of M.A.C.T. The Insurance Company is directed to deposit the remaining amount in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww