Tijin Mathew Joseph S/O. Joseph v. Jose C.L., James Joseph, ICICI Lombard General Insurance Co. Ltd., Ratheesh Kumar, Shereef C.A., Reliance General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944** **MACA NO. 1586 OF 2012** **AGAINST THE AWARD DATED 23.04.2012 IN OPMV 140/2009 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER:** **TIJIN MATHEW JOSEPH S/O. JOSEPH, NELLUR HOUS, PINANGODE POST VYTHIRI TALUK.** **BY ADV SRI.ABRAHAM MATHEW (VETTOOR)** ## **RESPONDENTS/RESPONDENTS:** - **1 JOSE.C.L S/O. LONAPPAN.C.T., CHITTILAPPILLY HOUSE, THARIYODE POST, )DRIVER OF BUS NO. KL 12B-5002. DL. NO. 648/97/W) PIN-673575.** - **2 JAMES JOSEPH, AGE NOT KNOWN, S/O JOSEPH MANKUTHEL HOUSE, ACHOOR POST, POZHUTHANA, VYTHIRI TALUK, (OWNER OF BUS NO. KL 12B 4126) PIN 673575.** - **3 ICICI LOMBARD GENERAL INSURANCE 2ND FLOOR, CITY PLACE, YMCA CROSS ROAD KOZHIKODE. (INSURER OF KL 12B 4126) POLICY NO. NO. 3004/52365689/00/000 PIN-673001.** - **4 RATHEESH KUMAR, AGE NOT KNOWN, S/O. BALAKRISHNAN, PUTHIYAVEETTIL HOUSE, CHENNALODE POST, VYTHIRI TALUK PIN-673121. (DRVIER OF THE BUS NO. KL 12 B 4126) PIN-673121.** - **5 SHEREEF.C.A., AGE NOT KNOWN, S/O. ALAVIKUTTY, CHOLAKKAL HOSUE, VYTHIRI POST, WAYANAD PIN-673121. (OWNER OF BUS NO,. KL 12B 5002) PIN-673121.** - **6 RELIANCE GENERAL INSURANCE CO. LTD. KALPETTA. (POLICE NO. NOT KNOWN, ISURER OF BUS NO. KL 12B 5002)PIN-673121.** - **BY ADVS. SRI.LATHEESH SEBASTIAN SRI.GEORGE CHERIAN THIRUVALLA** ## **SMT.K.S SANTHI-R2** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1586 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.140/2009 on the file of Motor Accidents Claims Tribunal, Kalpetta (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) by a minor represented by his guardian for the injury sustained in a motor accident occurred on 16.06.2008, while he was travelling in a bus bearing Registration No.KL-12B/5002, due to hit with another bus bearing Registration No.KL 12B/4126. It is alleged that the accident occurred due to the rash and negligent driving of the 4[th] respondent. 2[nd] respondent is the registered owner of the offending vehicle.3[rd] respondent is the insurer . A total compensation of Rs.1,62,000/- has been claimed which was limited to Rs.1,50,000/-. 2. Before the Tribunal, respondents 2 and 4 filed joint M.A.C.A No. 1586 of 2012 **3** written statement contending that the accident happened due to the rash and negligent driving of the 1[st] respondent. 1[st ] respondent filed separate written statement denying the rashness and negligence on his part and attributing negligence on the part of the 4[th] respondent. 3[Rd] respondent filed separate written statement alleging that there is some foul play with respect to the name of the driver of the vehicle. 5[Th] respondent remained exparte. 6[th] respondent filed written statement denying the insurance coverage with respect to the bus bearing Registration No.KL 12B/5002. It would also contend that the accident happened due to the rash and negligent driving of the 4[th] respondent and compensation if any awarded to be realised from the driver, owner and insurer of the offending vehicle. 3. Exts. A1 to A8 series and C1 marked from the side of the appellant/claimant. There is no oral evidence from either side. On evaluating the pleadings as well as documents, Tribunal found that the accident happened due to the rash and negligent driving of the 4[th] respondent and hence, 2[nd] respondent is held vicariously liable for the act of the driver and 3[rd] respondent is held liable to M.A.C.A No. 1586 of 2012 **4** indemnify the 2[nd] respondent insured. A total compensation of Rs.41,650/- was awarded by the Tribunal. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant (hereinafter be referred as claimant) approaches this Court in appeal for various grounds stated in the memorandum of appeal. Adv. Latheesh Sebastian, filed vakalath on behalf of the 3[rd] respondent insurer. Adv. K.S.Santhi appeared on behalf of the 6[th] respondent. Notice as against 1[st] respondent is dispensed with. Lower court records were called for and perused. 5. Heard the learned counsel for the claimant as well as the learned counsel for the 3[rd] and 6[th] respondents/insurers. 6. According to the learned counsel for the claimant, claimant is a minor aged 14 years and he sustained 9% permanent whole body disability due to the serious injuries sustained by him out of the accident. But Tribunal awarded a meager compensation of Rs.41,650/-. In this context, the learned counsel relies on **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Another : 2013 ACJ 2445** and seeks for M.A.C.A No. 1586 of 2012 **5** enhancement of compensation based on the principles laid down therein. 6. The learned counsel for insurers on the other hand would contend that just and reasonable compensation has already been awarded and no enhancement is required in this appeal. 7. In **Mallikarjun,** the two Judge Bench of the Apex Court considered various aspects while fixing compensation with respect to minor victims who sustained permanent disability in motor accident. In that case, the minor was 12 years old and sustained injuries out of hit by motorcycle on 05.06.2006. **R.D.Hattangadi v. Pest Control (India) Pvt.Ltd. : 1995 ACJ 366 (SC)** was quoted in that decision wherein while assessing non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports and damages on account of inconvenience, hardship, discomfort, disappointment, frustration etc. have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. So, while considering the claim of victim M.A.C.A No. 1586 of 2012 **6** child, it would be unfair and improper to follow the structured formula in the second schedule of the Act. The main stress in the formula is on technical damages. For children there is no income. The only indication in the second schedule for non-earning person is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked under non-pecuniary heads in addition to the actual amount incurred for treatment and or to be done, transportation, assistance of attendant etc. The main elements of damage in the case of child victims are pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. 8. The Apex Court further quoted **Sapna v. United India Insurance Co.Ltd, 2008 ACJ 2148 (SC)** , wherein in the case of a M.A.C.A No. 1586 of 2012 **7** 12 year old girl who suffered 90% disability in her left limb, the court granted lumpsum amount of Rs.2,00,000/- on these heads. Again in **Irana v. Mohammadali Khadarsab Mulla** , **2004 ACJ 1396 (Karnataka)** , a Division Bench of High Court granted an amount of Rs.4,00,000/- on these heads to the child who suffered 80% disability. In **Michael v. Regional Manager, Oriental Insurance Co.Ltd., 2013 ACJ 1887 (SC)** , in case of an eight year old child suffering a fracture on both legs with total disability to the tune of 16%, it was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts. 9. Apex Court went on discussing that it is difficult to have an accurate assessment of compensation in the case of children suffering disability on account of motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, it has been held that the appropriate compensation on all other heads in addition to the actual expenditure towards treatment, attendant etc. should be if the disability is above 10 per cent and upto 30% of the whole body, Rs.3,00,000/-, upto 60% Rs.4,00,000/-, upto 90% Rs.5,00,000/- M.A.C.A No. 1586 of 2012 **8** and above 90% it should be Rs.6,00,000/-. For permanent disability upto 10%, it should be Rs.1,00,000/- unless there are exceptional circumstances to take a different yardstick. So, in that case, taking into account the fact that the disability is to the tune of 18% and appellant had a longer period of hospitalisation for about two months, an amount of Rs.3,00,000/- was awarded under the head of pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort etc and loss of amenities in life on account of permanent disability. 10. Exts.A5 to A8 series are medical records produced from the side of the claimant. Ext.A5 wound certificate issued from Assistant Surgeon, District Hospital, Manathavady in which injuries noted are bony injury right elbow, Epiphyseal injury right humerus lateral epicondyle. He was referred to the Medical College Hospital for further treatment. Ext.A6 is the discharge certificate issued from the Medical College Hospital, Kozhikode. As per Exts.A6 and A7, minor injured has sustained type III open fracture both bones lower end of right forearm with amputation of tip of ring M.A.C.A No. 1586 of 2012 **9** finger. He was admitted in the hospital on 17.06.2008 and discharged on 27.06.2008. Ext.A8 series are the reference cards issued from Medical College Hospital proving admission on 17.06.2008 to 27.06.2008. He had undergone surgery on 17.06.2008. Name of operation is Jessfixation + wound debridement + fasciotomy stump closure. Diagnosis noted is type III open BB (r) FA with amputation tip of ring finger. 11. Ext.C1 is the disability certificate issued by the Medical Board certifying 9% permanent disability as per Mc Bride scale whole body. It has come out from the medical records as well as disability certificate issued from Medical Board that the claimant sustained 9% permanent whole body disability. Hence as per **Master Mallikarjun (supra),** claimant is entitled to get Rs.1,00,000/- in addition to actual expenditure for treatment etc. The award passed by the Tribunal would go to show that an amount of Rs.10,000/- has been awarded towards pain and suffering and Rs.20,250/- has been awarded towards permanent disability. Further Rs.2,000/- has been awarded towards loss of amenties and another Rs.3,000/- towards loss of earning power. M.A.C.A No. 1586 of 2012 **10** Those amounts have to be deducted from Rs.1,00,000/- fixed as per **Master Mallikarjun.** 12. The learned counsel for the claimant would contend that claimant is entitled to get compensation towards discomfort and inconvenience and loss of earnings to the parents during the period of hospitalization. Since the claimant had undergone 10 days inpatient treatment, an amount of **Rs.3,000/-** is awarded towards discomfort and inconvenience and loss of earnings to the parents. Hence, the claimant is entitled to get enhanced compensation of **Rs.67,750/-** (1,00,000-35,250+3,000). 13. In the result, appeal allowed and claimant is allowed to realize enhanced compensation of **Rs.67,750/-** (Sixty seven thousand seven hundred and fifty only) in this appeal, which will carry interest at the rate of 6.5% per annum from the date of petition till realization. 3[rd] respondent/insurer is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. Appellant/claimant shall provide his Bank Account details M.A.C.A No. 1586 of 2012 **11** (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. SD/- **M.R.ANITHA, JUDGE** rps/