A.R.Nijin Raj vs Santhosh S/o Ayyappan

M.R.Anitha, J

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.

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.

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.

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 this Court in appeal. All the respondents appeared through counsel. Lower court records were called for and perused.

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.

No.

Head of Claim

Amount Claimed

(Rs.)

AmountAwarded

(Rs.)

Basis vital details in a nut

shell

1

Transportation

charges

2000

1000

2

Damage to clothing

and articles

500

500

3

Bystanders expenses

3500

1400

7 days x 200

4

Extra Nourishment

charges

2000

2000

5

Medical Expenses

20000

13430

(Rounded)

6

Pain and suffering

20000

15000

7

Loss of permanent

disability

Loss of convenience

and enjoyment of

life on account if

physical disability

100000

20000

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.

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.

So, the only point of consideration is whether the claimant is entitled to get any enhanced compensation on account of permanent disability at 12% certified by the Doctor.

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”

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.

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 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.

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.

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.

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 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.

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 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.