Kerala High Court
Rincy vs Manoj on 1 March, 2021
M.A.C.A.No.1706 OF 2009 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
MACA.No.1706 OF 2009
AGAINST THE AWARD IN OPMV 525/2003 DATED 14-11-2008 OF DISTRICT COURT &
SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA
APPELLANT/PETITIONER:
RINCY, AGED 20 YEARS,
D/O.K.C.JOSEPH, KAPPILEMAKKEL,, THALAPUZHA PO,
MANANTHAVADY TALUK,WAYANAD DISTRICT
BY ADVS.
SRI.N.J.ANTONY
SMT.T.J.SEEMA
RESPONDENTS/RESPONDENTS:
1 MANOJ, AGE NOT KNOWN, S/O.KUMARAN,
MYLAMKUNNATH HOUSE, PARIYARAMKUNNU, PUTHUSSERY,,
MANANTHAVADY TALUK,(DRIVER OF BUS NO.KL-12B/5644,
D.L.NO.NOT KNOWN)
2 K.YOUSUF, AGE AND FATHERS NAME NOT KNOWN.
KANHAYI HOUSE, VALERI
MANANTHAVADY TALUK,(OWNER OF BUS NO.KL-12B/5644)
3 UNITED INDIA INSURANCE CO.LTD KALPETTA
POLICE NO.NOT KNOWN.
4 KURAIN, AGED 37 YEARS SO.THOMAS
PAYIKKATTU, P.O.CHENNALODE,MANANTHAVADY TALUK, (DRIVER CUM
OWNER OF THE MOTOR CYCLE NO.KL-12B, 5786.D.L.NOT KNOWN)
5 THE NEW INDIA ASSURANCE CO.LTD KALPETTA
POLICY NO.NOT KNOWN
R1 BY ADV. SRI.SUNNY MATHEW
R1 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL
R5 BY ADV. SRI.P.MURALEEDHARAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.1706 OF 2009 2
P.V.KUNHIKRISHNAN, J
--------------------------------
M.A.C.A.No.1706 of 2009
-------------------------------
Dated this the 1st day of March, 2021
JUDGMENT
The appellant is the claimant in O.P(M.V) 525/2003 on
the file of the Motor Accidents Claims Tribunal, Kalpetta.
Above claim petition is filed by the appellant claiming
compensation under section 166(1)(a) of the Motor Vehicles
Act.
2. The case of the appellant can be summarised as
follows:- The petitioner, a minor was travelling in a motor
cycle as a pillion rider on 01.11.2003 at about 1.45.p.m, from
Mananthavady to Chennalode. At that time, when the vehicle
reached at L.F.U.P School, Mananthavady, a bus bearing
Registration No. KL.12-B/5644 driven by respondent No.1,
came from Panamaram side to Mananthavady in a rash and
negligent manner, hit against the motor cycle and thereby she
sustained serious injuries. She was taken to the various
hospitals on different dates. It is contented that the accident
occurred due to the rash and negligent driving of bus by
Respondent No.1. Respondent Nos. 2 and 3 are the Owner
and Insurer of the Bus at the time of the accident.
Respondent No.4 was the rider-cum-Owner of the Motor Cycle
and Respondent No.5 was the Insurer of the Motor Cycle. The
claimant submitted that all the respondents are jointly and
severally liable to pay the compensation.
3. To substantiate the case one witness was examined as
PW1. Exhibits A1 to A7 were also marked. C1 is the disability
certificate. After going through the documents and pleadings,
the Tribunal passed an award allowing the petition by granting
an amount of Rs. 47,550/- (Rupees forty seven thousand five
hundred and fifty only) as compensation with interest at the
rate of 6% p.a, from the date of filing of the petition, till
payment by respondent Nos. 3 and 5. Aggrieved by the
quantum of compensation, this appeal is filed.
4. Heard the learned counsel for the appellant and the
learned counsel for the respondent Nos. 3 and 5.
5. Admittedly, there is no appeal filed by the Respondent
Nos. 3 and 5, who are the Insurance Companies of the two
vehicles. Therefore, they are liable to pay the amount if any
enhanced compensation is awarded in this appeal.
6. The main contention of the appellant is that the
appellant was a student aged 15 years at the time of accident.
As per Ext.C1, the disability is assessed by the medical board
as 15%. The counsel relied the judgment of the Apex Court in
Master Mallikarjun v. Divisional Manager, The National
Insurance Company Limited & Anr. (2013 (3) KLJ 815)
and argued that the appellant is entitled an amount of Rs.3
lakh. There is some force in the argument of the counsel for
the appellant. In Master Mallikarjun's case the Supreme
Court observed like this.
"8.It is unfortunate that both the Tribunal and the
High Court have not properly appreciated the
medical evidence available in the case. The age of
the child and deformities on his body resulting in
disability, have not been duly taken note of. As held
by this Court in R.D. Hattangadi vs. M/s. Pest
Control (India) Pvt. Ltd. and Others[1],(1995 (1)
SCC 551), while assessing the 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, etc., 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.
While considering the claim by a victim child, it
would be unfair and improper to follow the
structured formula as per the Second Schedule to
the Motor Vehicles Act for reasons more than one.
The main stress in the formula is on pecuniary
damages. For children there is no income. The only
indication in the Second Schedule for non- earning
persons 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 out under the non-
pecuniary heads in addition to the actual amounts
incurred for treatment done and/or to be done,
transportation, assistance of attendant, etc. The
main elements of damage in the case of child
victims are the 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. In other words, apart
from this head, there shall only be the claim for the
actual expenditure for treatment, attendant,
transportation, etc.
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 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 instant case, the disability is to the
tune of 18%."
Admittedly, the appellant was aged 15 years. The medical
board certified that he is having a disability of 15% to the
whole body. If the disability is above 10% and upto 30% to
the whole body, the appellant is entitled to Rs. 3 lakhs as
compensation towards pain and sufferings already undergone
and to be suffered in future, mental and physical shock,
hardship, inconvenience and discomfort etc and loss of
amenities on account of permanent disability. Therefore, the
appellant is entitled an amount of Rs.3 lakh on that ground
itself.
7. As far as the transport to go to hospital is concerned,
an amount of Rs. 700/- is awarded. I think it is to be enhanced
to Rs. 1,000/-.
8. Towards damage to clothing and article, only Rs. 200/-
is allowed. That is to be enhanced to Rs. 1,000/-.
9. The bystanders expenses also to be increased. She
was in hospital for 18 days. Therefore, bystanders expenses is
to be enhanced to Rs. 2,700/- (18x150) instead of Rs. 500/- .
10. Similarly, the amount awarded for extra nourishment
is also to be increased to Rs. 2000/- instead of Rs.1000/-.
11. Hence the total enhanced amount that the appellant
is to be entitled is summarised below:-
Sl. Head under which compensation is Enhanced
No. claimed amount
1 Transportation to hospital Rs.300
2 Damage to clothing Rs.800
3 Bystanders expenses Rs.2200
Pain and suffering already undergone
and to be suffered in future, mental and
physical shock, hardship,inconvenience,
4 Rs.300000
and discomforts, etc. and loss of
amenities in life on account of
permanent disability.
5 Extra Nourishment Rs.1000
Total Rs.304300
Therefore, this appeal is allowed in part and the appellant is
entitled for an enhanced compensation of Rs.3,04,300/-
(Rupees Three lakh four thousand three hundred only) with
interest at the rate of 6% p.a., from the date of the petition till
realisation. Respondent Nos. 3 and 5 shall pay the amount
equally.
Sd/-
P.V. KUNHIKRISHNAN
JUDGE
avs/al/-
