A.R.Nijin Raj S/O. Rajan vs Santhosh
2022 Latest Caselaw 3032 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
           THE HONOURABLE MRS. JUSTICE M.R.ANITHA
 THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
                   MACA NO. 2683 OF 2014
 AGAINST AWARD IN OPMV 1331/2005 DATED 24.07.2014 OF MOTOR
             ACCIDENT CLAIMS TRIBUNAL,THRISSUR


APPELLANT/PETITIONER:

         A.R.NIJIN RAJ, S/O. RAJAN
         ARANAKKAL HOUSE, P.O.CHENGALOOR,
         KANNAMPUTHUR NORTH, THRISSUR DISTRICT.
         BY ADV SRI.P.V.CHANDRA MOHAN


RESPONDENT/RESPONDENTS:

    1    SANTHOSH
         S/O.AYYAPPAN, NEDUPULY HOUSE, NANDIPULAM P.O.,
         THRISSUR DISTRICT, PIN-680312.
    2    SAJEEVAN VEERAN
         S/O.MADHAVAN, IRUVILANGAT HOUSE, CHITTISSERY,
         NENMANIKKARA, THRISSUR DISTRICT, PIN-680301.
    3    UNITED INDIA INSURANCE CO.LTD.
         DIVISIONAL OFFICE, THRISSUR, PIN-680001.
         BY ADVS.
         SMT.P.R.REENA
         SRI.RENJITH THAMPAN SR.
         SMT.RAJI T.BHASKAR for R3
         SRI.L.K.RAJAGOPAL


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 28.02.2022, THE COURT ON 17.03.2022 DELIVERED
THE FOLLOWING:
 M.A.C.A.No.2683/2014
                                              2




                                M.R.ANITHA, J
                               ******************
                         M.A.C.A.No.2683 of 2014
               ------------------------------------------------------
               Dated this the 17th day of March, 2022


                                   JUDGMENT

This appeal has been filed against the award passed in O.P.

(MV) No.1331/2005 on the file of Additional Motor Accidents

Claims Tribunal, Thrissur. The claim petition has been filed under

Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act')

for the injuries sustained by the minor in a motor accident

occurred on 05.12.2004 at 12.45 noon when the minor was hit

by a motorcycle bearing Registration No.KL-8/Z 2901 out of

which the minor claimant sustained grievous injuries. It is alleged

that the accident happened due to the rash and negligent driving

of the second respondent. The vehicle is owned by the first

respondent. Third respondent is the insurer. A total compensation

of Rs.1,48,000/- was claimed.

M.A.C.A.No.2683/2014

2. Respondents 1 and 2 though appeared did not contest

the case. Third respondent filed written statement admitting the

policy coverage with respect to the offending vehicle. It was

contended that the policy records are not verified and the second

respondent drove the vehicle without valid driving licence.

Rashness and negligence alleged against the second respondent

is denied and contended that the accident occurred due to the

negligence of the appellant/claimant himself. There is delay in

lodging the first information statement. The age, education and

nature of injuries of the appellant alleged in the petition are

denied and compensation claimed is also contended to be

excessive.

3. PW1 was examined and Exts.A1 to A8 were marked

from the side of the claimant. Exts.B1 and B2 were marked from

the side of the third respondent.

4. The Tribunal, on evaluating the evidence and facts and

circumstances, awarded a total compensation of Rs.53,330/-.

Dissatisfied with the quantum of compensation awarded by the

Tribunal, claimant through his next friend/guardian approached M.A.C.A.No.2683/2014

this Court in appeal. All the respondents appeared through

counsel. Lower court records were called for and perused.

5. Heard learned counsel for the appellant/claimant as

well as learned Standing Counsel for the insurer/the third

respondent. Learned Standing Counsel for the third respondent

did not dispute the accident, finding of negligence as well as the

liability on the part of the third respondent. The challenge before

this Court is only with regard to the quantum of compensation

awarded by the Tribunal. The award passed by the Tribunal is as

follows:

Sl.   Head of Claim         Amount    Amount    Basis vital details in a nut
No.                         Claimed   Awarded   shell
                            (Rs.)     (Rs.)
1     Transportation        2000      1000
      charges
2     Damage to clothing    500       500
      and articles
3     Bystanders expenses 3500        1400      7 days x 200
4     Extra Nourishment     2000      2000
      charges
5     Medical Expenses      20000     13430     (Rounded)
6     Pain and suffering    20000     15000
7     Loss of permanent     100000    20000
      disability
      Loss of convenience
      and enjoyment of
      life on account if
      physical disability
 M.A.C.A.No.2683/2014



      6.    According    to    the    learned    counsel         for     the

appellant/claimant,     the   appellant/claimant     (hereinafter        be

referred as 'the claimant') sustained grievous injuries to the scalp

as well as to right hand. PW1 Doctor issued disability certificate

certifying 12% disability (whole body). The Tribunal also

accepted 12% disability. But, for the reason that the claimant is

a minor and not an earning member, the Tribunal awarded

Rs.20,000/- under the head permanent disability, loss of

convenience and enjoyment of life on account of physical

disability, which according to the learned counsel, is very low.

Hence he seeks for enhancement of compensation on that head.

7. Learned counsel for the third respondent, on the other

hand, would contend that a just and reasonable compensation

has already been awarded by the Tribunal. The claimant has

undergone only 7 days in-patient treatment and hence no

interference is called for in this appeal at the instance of this

Court.

8. So, the only point of consideration is whether the

claimant is entitled to get any enhanced compensation on M.A.C.A.No.2683/2014

account of permanent disability at 12% certified by the Doctor.

9. In this case, Ext.A5 wound certificate, Ext.A6

discharge summary coupled with evidence of PW1 and Ext.A7

disability certificate have been relied on to prove the injuries and

consequent disability sustained by the minor claimant. Ext.A5

wound certificate would reveal that immediately after the

accident the claimant was taken to Elite Mission Hospital, Thrissur

and the following injuries were noted as per the wound

certificate.

"i) 2 cm long laceration 2 numbers over right frontal scalp.

ii) Superficial abraded lacerations over upper lip

iii) 3 x 2 cm by muscle deep laceration over right hypochondrium

iv) 6 cm long laceration dorsum right wrist

v) 7 cm long laceration over middle third of forearm Chin #, Styloid process of ulna

vi) Segmental extensor tendon injury of little, ring and middle finger at middle of forearm and level of extensor retinaculum

viii) X-ray Skull - No vault #

ix) X-ray Forearm -# Styloid process ® ulna"

M.A.C.A.No.2683/2014

10. The claimant undergone surgery on 05.12.2004 for

i) wound exploration, extensor tendon repair and POP Slab given

in extension/GA and ii) Scalp and abdominal wall wounds

debridement and suturing by Plastic Surgeon. According to PW1,

he examined the patient on 01.07.2011, that is after almost 7

years after the incident and the Doctor deposed in terms with the

certificate and would depose that the claimant had deformity of

right wrist, main vein of the right ulna, styloid process decreased

range movement of right wrist and palm. During cross-

examination, he asserted that he had verified the wound

certificate, discharge summary and fracture X-ray for issuing

Ext.A7 disability certificate. But, at the same time, he would

depose that he has not applied the formula used in case of

continued disabilities. In Ext.A7 discharge summary diagnosis is

minor head injury, multiple frontal scalp laceration, Abdominal

wall and fracture styloid process (R) ulna, Extensor tendon

injury (R) forearm. Course in Hospital would state that child

remained neurologically stable while in hospital. For assessing

bony injuries he was seen by Orthopedic Surgeon. M.A.C.A.No.2683/2014

11. It is relevant in this context to quote Master

Mallikarjun v. Divisional Manager, The National Insurance

Company Limited and 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 M.A.C.A.No.2683/2014

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.

12. 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 M.A.C.A.No.2683/2014

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.

13. 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% M.A.C.A.No.2683/2014

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.

14. In the present case, the minor child aged 12 years is

certified to have 12% permanent whole body disability. It is

contended by the learned counsel that Tribunal had taken 12%

disability assessed by PW1. On going through the award it could

be seen that Tribunal has not made any discussion as to whether

12% assessed by PW1 is acceptable or not. Tribunal had given

the thought only as per the argument of the counsel for the

insurer that, disability will not entitle him to get any amount

towards loss of earning. It has come out in evidence that the M.A.C.A.No.2683/2014

claimant had undergone only 7 days in-patient treatment.

Admittedly the Doctor who issued the disability certificate is not

the Doctor who treated him. Moreover PW1 the Doctor who

issued Ext.A7 disability certificate would categorically admit that

he has not applied the formula used in case of continued

disabilities. The amount awarded towards medical expenses is

also Rs.13,430/-. So as rightly contended by the learned

Standing Counsel 12% permanent disability certified by PW1 is

on higher side and it can be taken as 6% whole body disability.

15. So, as per the principles laid down in Mallikarjun's

case, 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.15,000/-

awarded by the Tribunal towards pain and suffering and

Rs.20,000/- awarded towards loss of permanent disability, loss of

convenience and enjoyment of life on account of physical

disability are to be deducted. So the balance amount would be

Rs.65,000/- [Rs.1,00,000 - Rs.35,000). Claimant is a minor boy M.A.C.A.No.2683/2014

aged 12 years and had undergone surgery and also in-patient

treatment for 7 days. He suffered 6% permanent whole body

disability also. Hence an amount of Rs.3,000/- is awarded

towards extra nourishment. So, the claimant is entitled to get

enhanced compensation of Rs.68,000/- with interest @ 7.5%

from the date of petition till realization. The third

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

(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

jsr

                  True Copy

                                   P.S.to Judge