Vishnu v. Prasannan and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 11TH DAY OF DECEMBER 2020 / 20TH AGRAHAYANA, 1942** **R.P.No.480 OF 2020 IN MACA NO.2300/2008** **AGAINST THE JUDGMENT DATED 16.03.2020 IN MACA 2300/2008 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/APPELLANT:** ## **VISHNU,** **AGED 26 YEARS, DOB 01.07.1994, S/O.U.V.PREMAN, RESIDING AT CHEERUVAYALIL HOUSE, KAKKODI P.O., MOOTTOLI, KOZHIKODE.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENTS/RESPONDENTS:** **1 PRASANNAN RESIDING AT THATTARAKANDI HOUSE, B.G.ROAD, WEST HILL P.O., KOZHIKODE. 2 THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE-11, PRAMOD BUILDINGS, 2ND FLOOR, CHEROOTTY ROAD, KOZHIKODE.** **SRI. JACOB MURICKAN, STANDING COUNSEL, ORIENTAL INSURANCE COMPANY LTD.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P.No.480 of 2020 in MACA NO.2300 of 2008 -2- ## **ORDER** This is a review petition filed by the petitioner/appellant, seeking an order to review the judgment of this Court dated 16.03.2020 in MACA No.2300 of 2008, whereby that appeal filed against the award dated 13.12.2007 of the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV) No.1359 of 2001 was disposed of by granting an additional compensation of Rs.16,491/- to the appellant, together with interest at the rate of 8% per annum from the date of petition till realisation. By that judgment, the 2[nd] respondent insurer was directed to satisfy the additional compensation granted in the appeal, together with interest, within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. In that judgment, it was made clear that the 2[nd] respondent insurer will be entitled to recover the said amount by proceeding against the 1[st] respondent owner and that the disbursement of the additional compensation shall be made taking note of the law on the point and in terms of the directives issued by this Court in ## R.P.No.480 of 2020 in MACA NO.2300 of 2008 -3- Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. 2. By an order dated 15.10.2008 in M.A.C.A. No.2300 of 2008, the appellant/claimant was referred to the Medical Board at the Medical College Hospital, Kozhikode in order to assess his permanent disability, if any. Pursuant to that order, the permanent disability of the appellant, who was minor, was assessed by the Medical Board as 5% and a certificate of permanent disability dated 27.11.2008 was forwarded to the Registry by the Superintendent of that Medical College, who is the Chairman of the Medical Board. However, that certificate was omitted to be incorporated in the Judges papers and since the learned counsel on both sides were not aware of the receipt of such certificate, the same could not be brought to the notice of this Court on 16.03.2020, when M.A.C.A. No.2300 of 2008 was finally heard. 3. The petitioner/appellant has filed this review petition seeking review of the judgment dated 16.03.2020 in M.A.C.A.No.2300 of 2008, for the aforesaid reason, seeking assessment of just and reasonable compensation, after taking note ## R.P.No.480 of 2020 in MACA NO.2300 of 2008 -4- of the permanent disability of the petitioner/appellant. 4. In this review petition, notice was issued to the 1[st] respondent since there is an order for recovery by the 2[nd] respondent insurer. Despite service of notice, none appears for the 1[st] respondent. 5. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the 2[nd] respondent insurer. 6. During the course of arguments, the learned Standing Counsel for the 2[nd] respondent Insurer would submit that the Insurer has no serious objections on the assessment of permanent disability at 5% by the Medical Board in the disability certificate dated 27.11.2008. 7. The accident occurred on 07.12.2020 and the petitioner had undergone inpatient treatment for 12 days. Ext.A2 series of medical bills are for a sum of Rs.6,241/-. 8. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC 396]** , a decision relied on by the learned counsel for the petitioner, the Apex Court laid down the principles regarding payment of R.P.No.480 of 2020 in MACA NO.2300 of 2008 -5- compensation for injuries sustained by children, 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% 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 ## R.P.No.480 of 2020 in MACA NO.2300 of 2008 -6- 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:- Head Compensation amount Pain and suffering already undergone and to Rs.3,00,000/be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life on account of permanent disability. Discomfort, inconvenience and loss of earnings Rs.25,000/to the parents during the period of hospitalisation. Medical and incidental expenses during the Rs.25,000/period of hospitalisation for 58 days. Future medical expenses for correction of the Rs.25,000/malunion of fracture and incidental expenses for such treatment. **TOTAL:Rs.3,75,000/-** 9. Going by the law laid down by the Apex Court in **Master** **Mallikarjun's case (supra)** , for permanent disability upto 10% to the whole body, 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 Rs.1,00,000/-. In the instant case, the permanent disability of the petitioner/appellant on account of the injuries sustained in the R.P.No.480 of 2020 in MACA NO.2300 of 2008 -7- accident is taken as 5% based on the disability certificate dated 27.11.2008 issued by the Medical Board. Therefore, the petitioner/appellant is entitled for a sum of **Rs.1,00,000/-** as compensation under this head. 10. 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 treatment the petitioner/appellant had undergone inpatient treatment for a period of 12 days, a sum of **Rs.7,500/-** is granted as compensation under this head. 11. 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.A2 series of medical bills are for a sum of Rs.6,241/-. Therefore, towards medical and incidental expenses, including transportation to hospital, the petitioner/appellant is granted a sum of **Rs.10,000/-** . R.P.No.480 of 2020 in MACA NO.2300 of 2008 -8- 12. 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, there is no reliable materials to prove future medical expenses on account of malunion of fracture, etc. Therefore, the petitioner/appellant is not entitled for any amount under this head. 13. In the result, the total compensation in OP(MV) No.1359 of 2001 on the file of the Motor Accidents Claims Tribunal, Kozhikode is re-fixed as Rs.1,17,500/- (1,00,000 + 7,500 + 10,000). In the result, the petitioner/appellant will be entitled for payment of an additional compensation of **Rs.1,07,000/-** (Rupees one lakh seven thousand only) [1,17,500 – 10,500], which will carry interest at the rate of 8% per annum from the date of claim petition till realisation. 14. The judgment of this Court dated 16.03.2020 in M.A.C.A. No.2300 of 2008 is modified to the above extent. 15. The 2[nd] respondent Insurer shall satisfy the additional compensation granted in this review petition, together with R.P.No.480 of 2020 in MACA NO.2300 of 2008 -9- interest, within a period of two months from the date of receipt of a certified copy of this order, after deducting the liability, if any, of the claimant towards Balance Court Fee and Legal Benefit Fund. The 2[nd] respondent Insurer will be entitled to recover the said amount by proceeding against the 1[st] respondent owner. The disbursement of additional compensation to the petitioner/appellant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The petitioner/appellant 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, with copy to the learned Standing Counsel for the Insurer, within one month from the date of receipt of a certified copy of this order. This review petition is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr