## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT**
**THE HONOURABLE MR.JUSTICE N.NAGARESH**
**MONDAY, THE 29TH DAY OF JUNE 2020/8TH ASHADHA, 1942**
## **MACA.No.200 OF 2007**
**AGAINST THE AWARD DATED 31-03-2006 IN OP(MV)1713/2001 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,THALASSERY**
## **APPELLANT/PETITIONER:**
**SINISHA V.P.,D/O.M.SURESH, AGED 10 YEARS,(MINOR),REPRESENTED BY HER FATHER AND GUARDIAN M.SURESH, S/O.NANU,AGED 39 YEARS,JINSHA NIVAS, KUTHUPARAMBA P.O., NIRMALAGIRI.**
**BY ADVS. SRI.M.SASINDRAN SRI.M.V.BIPIN**
## **RESPONDENTS/RESPONDENTS:**
**1 K.P.REGHUNATHAN NAIR,KUPPAMALA HOUSE, CHETTAPALAM P.O.,PULPALLY.(OWNER OF MINI LORRY BEARING REG.NO.KL-12/5488). 2 ACHYATH SATHEESAN,S/O.KELAPPAN(DELETED) 'AKSHAYA',NEAR SREE NARAYANA LIBRARY, DHARMADOM AMSOM,PALAKKAD DESOM (DRIVER OF MINI LORRY BEARING REG.NO.KL-12/5488)**
**RESPONDENT NO.2 IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 18/10/2019 IN I.A. NO. 1/2019 IN MACA NO. 200/2007.**
**3 THE UNITED INDIA INSURANCE COMPANY LTD. KANNUR (POLICY NO.10269202408)**
**R3 BY ADV. SRI.N.S.MOHAMMED USMAN**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
MACA No.200/2007
: 2 :
## **J U D G M E N T**
~ ~ ~ ~ ~ ~ ~ ~ ~
## _**Dated this the 29[th] day of June, 2020**_
The appellant, who is the claimant in OP(MV) No.1713/2001 of the Additional Motor Accidents Claims Tribunal, Thalassery, is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 31.03.2006.
2. In the year 2001, the appellant was a minor girl aged five years. On 18.05.2001, when the appellant was standing near a bus stop with her mother and sisters, a Mini lorry driven by the 2[nd] respondent in OP(MV) in a rash and negligent manner, hit the appellant. The appellant suffered
MACA No.200/2007
: 3 :
serious injuries and was taken to Tellichrery Co-operative Hospital, Thalassery. Considering the serious nature of injuries, the appellant was referred to Medical Trust Hospital, Kochi. Thereafter, the appellant had to be treated at Specialist Hospital, Ernakulam also. The appellant suffered 44% total permanent locomotor disability in relation to the right lower limb. The OP(MV) was filed seeking a total compensation of ₹5,50,000/-.
3. The 3[rd] respondent-insurer herein contested the OP filing written statement. The insurance coverage on the offending Mini lorry was admitted. The 3[rd] respondent, however, contended that the compensation claimed under various heads are exorbitant and without any basis. The appellant produced Exts.A1 to A14 documents, examined herself as PW1 and one Dr. Muraleedharan as PW2.
4. When this MACA was taken up for hearing on 10.12.2019, this Court noted that Ext.A9 Disability Certificate issued by the Medical Board at General Hospital,
MACA No.200/2007
: 4 :
Thalassery noted the permanent disability of the appellant as 8.5%. After perusing the photographs of the appellant, this Court deemed it necessary to subject the appellant afresh for medical assessment. Accordingly, a direction was given to the Superintendent of District Hospital, Thalassery to assess the permanent disability of the appellant. Accordingly, the Superintendent, General Hospital assessed disability of the appellant and submitted a copy of the assessment, contained in proceedings No.193/2020 dated 10.10.2020 (sic) of the Medical Board, General Hospital, Thalassery along with a letter No.D4/193/2020 dated 10.01.2020. As per the assessment made by the Medical Board, the total permanent locomotor disability in relation to the right lower limb of the appellant was assessed as 44%.
5. After considering the evidence on record, the Tribunal concluded that the accident occurred due to the negligent driving of the Mini lorry. Taking note of the injuries and treatment history, the Tribunal awarded a compensation
MACA No.200/2007
: 5 :
## of ₹1,51,500/- as follows:-
|1.|Transportation expenses|-|₹6,000/-|
|---|---|---|---|
|2.|Attendant expenses (₹150 x 36)|-|₹5,400/-|
|3.|Extra nourishment|-|₹1,800/-|
|4.|Damage to clothing|-|₹400/-|
|5.|Medical expenses|-|₹79,800/-|
|6.|Pain and suffering|-|₹15,000/-|
|7.|Compensation for disability|-|₹23,000/-|
|8.|Compensation for disfigurement|-|₹15,000/-|
|9.|Loss of amenities|-|₹5,000/-|
||Total|-|₹1,51,500/-|
||||=========|
The Tribunal awarded 6% interest per annum from the date of OP(MV). The 3[rd] respondent-insurer was directed to make the payment. Aggrieved by the low amount of compensation, the appellant is before this Court.
6. Learned counsel for the appellant argued that the appellant was a minor aged five years at the time of
MACA No.200/2007
: 6 :
accident. She was a girl child. From the medical records, it is evident that the nature of injuries suffered by the appellant on right foot has resulted in serious disfiguration of the limb. She had to undergo micro-vascular surgery in Specialist Hospital, Ernakulam. Linear fracture was noted on the floor of anterior cranial fossa on the left - involving the frontal bone forming the ocbital roof. The fracture noted was compounded fracture with crushing of tissues. The appellant suffered 44% total permanent locomotor disability. When the injury suffered by the appellant was so serious and the disability resulted being so high, the Tribunal's Award of compensation of ₹23,000/- towards disability is mere pittance.
7. The counsel for the appellant further argued that only an amount of ₹15,000/- was granted towards pain and suffering. Towards disfiguration, only ₹15,000/- was awarded. Compensation for loss of amenities of ₹5,000/- is also on a lower side. The transportation expenses,
MACA No.200/2007
: 7 :
bystander expenses, compensation towards nutrition, are all very much on a lower side. The compensation is therefore liable to be enhanced.
8. Learned Standing Counsel for the 3[rd ] respondent opposed the arguments made on behalf of the appellant. Learned Standing Counsel pointed out that taking into account the age of the appellant, the Tribunal fixed her notional income as ₹1,500/-. The functional disability of 8.5% arrived at by the Tribunal was on the basis of evidence adduced by PW2. The Tribunal has adopter proper multiplier. Therefore, no revision of compensation is warranted towards disability.
9. Learned Standing Counsel further argued that the Tribunal has granted ₹79,800/- towards medical expenses on the basis of the Bills produced. The bystander expenses awarded by the Tribunal is also proper and at standardised rates. The learned Standing Counsel further argued that in the case of injury to minors, the case should be governed by
MACA No.200/2007
: 8 :
the judgment of the Apex Court in _**Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and another** [(2014) 14 SCC 396]._ The case of the appellant is not of an exceptional nature. The disability incurred by the appellant is not of serious nature and is not likely to affect her future life. The Award of the Tribunal is therefore not liable to be interfered with.
10. I have heard the learned counsel for the appellant and learned Standing Counsel for the 3[rd] respondent.
11. The appellant was admittedly a minor of five years age at the time of accident. In _**Master Mallikarjun** (supra),_ the Hon'ble Apex Court considered a case of compensation for injuries sustained by a child and prescribed guidelines for calculating compensation for permanent disability sustained by children. The Apex Court held as follows:-
“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
MACA No.200/2007
: 9 :
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% 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 light of the afore judgment of the Apex Court, the disability of the appellant assessed by the Medical Board, General Hospital, Thalassery pursuant to the order of this Court being 44%, the appellant is eligible to get a compensation of ₹3 lakhs towards disability as against the amount of ₹23,000/- awarded by the Tribunal. Accordingly, it is held that the appellant will be entitled to an additional compensation of **₹2,77,000/-** towards disability.
12. The Tribunal has awarded only ₹1,800/- for extra nourishment. The appellant was inpatient in hospitals for 36 days and had to continue treatment thereafter also. Therefore, the compensation towards extra nourishment has to be marginally increased. It is declared that the appellant
MACA No.200/2007
: 10 :
will be entitled to ₹3,600/- as compensation towards extra nourishment. The appellant is therefore declared to be entitled to an additional compensation of **₹1,800/-** under this head. The appellant has been awarded ₹400/- towards damage to clothing. Noting the year of accident as 2001, this Court finds that the appellant ought to have been awarded ₹750/- towards damage to clothing. Accordingly, it is held that the appellant will be entitled to an additional compensation of **₹350/-** towards damage to clothing.
13. It has come out from the records that after the accident, the appellant was taken to Tellicherry Co-operative Hospital at Thalassery. From there, the appellant had to be shifted to Medical Trust Hospital, Kochi. Thereafter, the appellant had to be taken to Specialist Hospital, Ernakulam North. Further travel might have been necessitated for review also. In the circumstances, this Court finds that the compensation for transportation ₹6,000/- awarded by the Tribunal is on a lower side. It is declared that the appellant
MACA No.200/2007
: 11 :
will be entitled to an additional compensation of **₹4,000/-** towards transport expenses, bringing the total amount under this head as ₹10,000/-.
14. The learned counsel for the appellant pointed out that the interest awarded by the Tribunal on payment of compensation was 6% during the year 2001 and thereafter. The rate of bank interest was on a higher side during those years and therefore, the appellant ought to have been awarded interest at the rate of 12%. This Court feels that the rate of 12% as claimed by the appellant is on a higher side and award of 9% interest would suffice to meet the ends of justice.
15. In the light of the findings made as above, it is declared that the appellant will be entitled to additional compensation of ₹2,83,150 under the following heads:-
- (i) Additional compensation towards ₹2,77,000/disability
- (ii) Additional compensation towards extra ₹1,800/-
MACA No.200/2007
: 12 :
||nourishment|||
|---|---|---|---|
|(iii)|Additional|compensation towards|₹350/-|
||damage to clothing|||
|(iv)|Additional|compensation towards|₹4,000/-|
||transportation expenses|||
|||Total|₹2,83,150/-|
||||=========|
The 3[rd] respondent is directed to pay the said amount with interest. The entire compensation amount of **₹4,34,650/-** (₹1,51,500/- + ₹2,83,150/-) will carry interest at the rate of 9% per annum from the date of the OP(MV) till the date of payment.
MACA is allowed in part as above.
Sd/- **N. NAGARESH, JUDGE**
aks/25/06/2020
