Visal v. P.K. Unnikrishnan and United India Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 4[TH] DAY OF APRIL 2022 / 14TH CHAITHRA, 1944** **MACA NO. 3013 OF 2009** **AGAINST THE AWARD DATED 19.04.2008 IN OPMV 1244/2003 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT-PETITIONER:** **VISAL, S/O SHAJI, PANTHRANDILCHIRA VEEDU, KANJIPADAM P.O, AMBALAPPUZHA. BY ADV SRI.R.AZAD BABU** ## **- RESPONDENTS RESPONDENTS:** - **1 P.K.UNNIKRISHNAN, AISWARYA, PADAHARAM MURI,THAKAZHY PANCHAYATH, THAKAZHY VILLAGE, ALAPPUZHA, NOW RESIDING AT D-8, N.T.P.C TOWNSHIP, NANGIARKULANGARA P.O, CHINGOLI PANCHAYATH, KARTHIKAPALLY TALUK.** - **2 UNITED INDIA INSURANCE COMPANY LIMITED REPRESENTED BY ITS BRANCH MANAGER,KAYAMKULAM. BY ADV SMT.R.REMA-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 3013 of 2009 **2** ## **JUDGMENT** This appeal has been filed against the award in O.P.M.V No.1244/2003 on the file of Motor Accidents Claims Tribunal, Alappuzha. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the claimant out of a motor vehicle accident occurred on 02.11.2003 at about 10.30 am. It is alleged that while he was riding bicycle through Ambalappuzha-Thakazhi road and reached near Njondi Mukku, Maruthi car bearing registration No.KL-4/C-6348 driven by the 1[st] respondent, came in a rash and negligent manner hit him resulting in serious injuries to him. Total compensation of Rs.3,00,000/- has been claimed. It is alleged that the accident happened due to the rash and negligent driving of the car by 1st respondent. 2nd respondent is the insurer of the offending vehicle. 2. Before the Tribunal, 1[st] respondent/the owner cum driver, remained exparte. The 2[nd] respondent filed written statement and rashness and negligence alleged against the 1[st] respondent is denied. Appellant/claimant himself is responsible for the accident. Policy M.A.C.A No. 3013 of 2009 **3** coverage with respect to the offending vehicle is admitted. It is also contended that the claims under various heads are excessive and exorbitant. 3. There was no oral evidence on either side. Exts. A1 to A16 were marked from the side of the claimant. On evaluating the pleadings and materials, the Tribunal found that the 1[st] respondent, the driver of the Maruthi car is responsible for the accident and hence 2[nd] respondent is held liable to indemnify the 1[st] respondent insured as per the contract of insurance. Tribunal awarded total compensation of Rs.26,000/-, together with interest at the rate of 7.5% per annum. 4. Aggrieved by the quantum of compensation awarded by the Tribunal, appellant/claimant (hereinafter be referred as claimant) came up before this Court in appeal for the various grounds stated in the memorandum of appeal. Notice against 1[st] respondent was dispensed with since 2[nd] respondent admitted the insurance coverage with respect to the offending vehicle. Lower court records were called for and perused. Heard the learned counsel for the claimant and the learned Standing Counsel for the 2[nd] respondent/insurer. 5. According to the learned counsel, the claimant sustained serious injuries including compound fracture of both bones of the right M.A.C.A No. 3013 of 2009 **4** leg with multiple soft tissue injuries. Permanent disability assessed by the Doctor is 6% but the Tribunal accepted only 4% disability. It is also contended that the annual income fixed as Rs.1,5000/- is very low since the accident was in the year 2003. The claimant is a studious student and he used to participate in extra curricular activities and documents are produced to substantiate it. Hence he seeks enhancement on all heads. 6. The learned counsel for the 2[nd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal. Disability certificate has been produced and disability was assessed. After perusing Ext.A14 disability certificate, the Tribunal rightly adopted 4% permanent disability and no interference is called for in this appeal. 7. Admittedly claimant was a student studying in 8[th] std of Government Model Higher Secondary School, Ambalapuzha. Ext.A16 certificate would go to show that claimant had participated in Mimicry competition held in connection with Balakalolsavam and won 1[st] price in Mimicry. 8. It is relevant in this context to quote **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and** M.A.C.A No. 3013 of 2009 **5** **Another : 2013 ACJ 2445** wherein 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. In that case, **R.D.Hattangadi v. Pest Control (India) Pvt.Ltd. : 1995 ACJ 366 (SC)** was quoted 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 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 M.A.C.A No. 3013 of 2009 **6** 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 nonpecuniary damages. 9. The Apex Court further quoted **Sapna v. United India Insurance Co.Ltd, 2008 ACJ 2148 (SC)** , wherein in the case of a 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. M.A.C.A No. 3013 of 2009 **7** 10. 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/- 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 11. In the present case, Ext.A3 wound certificate and Ext.A12 discharge card issued from the Medical College, Alappuzha would prove injuries sustained and treatment undergone by the claimant. M.A.C.A No. 3013 of 2009 **8** 12. The injuries sustained by the claimant is compound fracture both bones of the right leg with multiple soft tissue injuries. He had under gone 21 days inpatient treatment. Ext.A12 discharge card reveals that the claimant had compound fracture both bones of the right leg. He has been treated by wound debridement and external fixation was done and on healing wound, he was discharged. Claimant further produced Ext.A14 disability certificate issued by the consultant orthopaedic surgeon, Medical college Hospital, Alappuzha where the claimant underwent treatment. The Doctor certified permanent partial physical disability at 6%. But the Tribunal adopted 4% whole body disability. Ext.A14 certificate shows that there is no limb length discripancy, range of movement of right hip, knee and ankle was within normal limits, fracture was united. Claimant was able to sit cross legged and squat fully. In view of the facts and circumstances, 4% permanent disability adopted by the Tribunal seems to be reasonable and no interference is called in that regard. Hence, compensation can be refixed as follows; 13. Claimant being a student, there is no loss of earnings. However, the amount of Rs.1,500/- awarded towards loss of studies is maintained. M.A.C.A No. 3013 of 2009 **9** 14. Rs.1,500/- already awarded by the Tribunal towards the by stander expenses. It has come out that he had undergone inpatient treatment for 21 days and the accident was in the year 2003. So claimant is entitled to get Rs.150/- per day towards by stander expenses. Hence, under the head of by stander expenses, claimant is entitled to get **Rs.1,650/-** (3,150 (150x21) -1,500). 15. Towards extra nourishment, the Tribunal awarded Rs.2,50/-. The claimant was minor studying in 8[th] standard and hence that can be enhanced to Rs.2,000/-. Deducting the amount already awarded, the balance would be **Rs.1,750/-** (2,000-250). In this case, disability sustained by the minor claimant has already been determined as 4%. So following principles in **Master Mallikarjun** (supra), the claimant is entitled to get an amount of Rs.1,00,000/- towards pain and suffering, mental and physical shock, hardship, inconvenience, discomfort, loss of amenities in life due to permanent disability. From that, an amount of Rs.10,000/- towards pain and suffering, Rs.9,000/awarded towards permanent disability and Rs.1,500/- towards loss of amenities is to be deducted. So balance would be **Rs.79,500/-** (1,00,000-20,500 (10,000+9,000+1500)). Hence, claimant is entitled to get total enhanced compensation of **Rs.82,900/-** (79,500+1,650+1,750). M.A.C.A No. 3013 of 2009 **10** 16. In the result, claimant is allowed to realise an enhanced compensation of **Rs.82,900/-** (Eighty two thousand nine hundred only) in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. The respondent No.2 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. 17. The appeal is filed with petition to condone delay of 52 days. While condoning the delay by order dated 22.05.2019 in CMAP.No.3590/2009, it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 52 days is excluded. Appellant/claimant shall provide his Bank Account details (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 a certified copy of this judgment. SD/- **M.R.ANITHA JUDGE** rps/