IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 551 of 2008()
1. MUNEERA (MINOR), REPRESENTED BY HER
... Petitioner
Vs
1. THE MANAGING DIRECTOR, K.S.R.T.C.,
... Respondent
2. THE MANAGER, NATIONAL INSURANCE CO.
For Petitioner :SRI.R.T.PRADEEP
For Respondent :SRI.JOE KALLIATH
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :22/01/2010
O R D E R
R.BASANT & M.C. HARI RANI,JJ
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M.A.C.A. NO. 551 OF 2008
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DATED THIS THE 22nd DAY OF JANUARY 2010
JUDGMENT
Basant,J.
Insurer/claimant is the appellant. She is a minor. She
suffered injuries in a motor accident which took place on
8-2-2002. She was aged 5 years at that time. She suffered
multiple injuries including fracture of the right femur, fracture of
pubic rami, dislocation of the right shoulder, degloving of both
thighs, vaginal lacerations, paraurethral tear and spinctre tear,
lateral and posterior vaginal volt tear. She was an inpatient for a
period of 115 days. During the pendency of the petition, her
disability was assessed and the Doctor opined that she suffers
30% disability of the MC bride scale. She had difficulty to walk
and there was limping. There was hypertrophic ugly looking
scars on both thighs. She was having pain of right lower limbs
on weight bearing. There was instability of right shoulder on
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clinical examination with possibility of recurrent dislocation of
right shoulder. There was difficulty to micturate and urinary
incontinence. There was malunion of the right femur with
angulation. There was partial ankylosis of right knee joint with
motion limited.
2. The Tribunal on an anxious consideration of all the
relevant inputs proceeded to pass the impugned award directing
payment of an amount of Rs.2,26,000/- as compensation along
with interest at the rate of 7.5% per annum. The relevant details
are shown below:
1) Pain and suffering : Rs. 30,000/- 2) Damage to clothing : Rs. 2,000/- 3) Transport to hospital : Rs. 5,000/- 4) Bystanders expenses : Rs. 5,000/- 5) Treatment expenses (bills for lesser amount only Produced) : Rs. 15,000/- 6) Disfiguration : :Rs 25,000/- 7) Loss of amenities : Rs 36,000/- 8) Reduction in earning
Capacity (2000x12x15x30/100): Rs.1,08,000/-
Total : Rs. 2,26,000/-
Maca 551/2008 -3-
3. The appellant claims to be aggrieved by the impugned
award. What is the grievance? Called upon to explain the
nature of the challenge which the appellant wants to mount
against the impugned award, the learned counsel for the
appellant raises various contentions.
4. First of all it is contended that the monthly
income/multiplicand reckoned by the Tribunal to ascertain the
quantum of compensation payable for reduction in earning
capacity is too low. The accident took place in 2002. The
claimant was a child about 5 years old. The Tribunal evidently
drew inspiration from the 2nd Schedule of the Motor Vehicles Act
which permitted drawal of presumption of prudence that even a
non-earning person can be assumed to earn Rs.1,250/- per
mensem. The child had not started earning. Ordinarily and
normally the child can be expected to start earning only after it
completes education and attains the age of 20-21 years.
Compensation has been awarded for the loss of income at least
15 years prior to the actual commencement of the possibility of
earning income. Taking all the circumstances into account, we
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are unable to agree that the multiplicand reckoned by the
Tribunal at Rs.2,000/- is improper or incorrect.
5. The learned counsel for the appellant then contends that
the Tribunal has not awarded treatment expenses past and
future in a reasonable manner. No amount has been awarded
towards future treatment at all. Towards treatment expenses
already incurred, only an amount of Rs.15,000/- has been
awarded. For 115 days the child was in the hospital as an
inpatient in different spells. Procedures had to be undergone by
the child. It would be idle and unrealistic of any prudent man to
expect parents to maintain meticulous accounts duly supported
by vouchers to prove all the items of expenditure incurred.
Computation of compensation is not a science of exactitude
alone. It is an art of reasonable assessment and assumptions
too. All possible inputs have to be taken into account. Human
probabilities will have to be taken into account.
6. It would be puerile for a court to non-suit a claimant
merely because he did not retain vouchers when the treatment
was going on to show that the expenses were incurred. The
court can be convinced that expenses must necessarily have
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been incurred. Considering the period of hospitalisation and
the procedures undergone, even in the absence of better
evidence, we find no hesitation to agree that an amount of
Rs.20,000/- must have been awarded for the past treatment. We
are dissatisfied that better materials have not been produced but
even in the wake of that inadequacy, we are of the opinion that
the courts and Tribunals cannot abdicate responsibility to be
realistic. Human probabilities can always be reckoned as a
relevant input. Towards future expenses, no amounts have been
awarded. What is there to show that future treatment will be
necessary, we queried. Our attention has not been drawn to any
specific evidence tendered by PW1,doctor about the possible
need for future treatment. But here again we look into Ext.A11
and we are of the opinion that if we adopt a reasonable
yardstick, it is eloquent about the possible need of a future
treatment. Recurrent dislocation of the right shoulder is
contemplated in Ext.A11 certificate. The nature of the surviving
disability also informs us that future treatment is necessary.
7. The courts and Tribunals called upon to guestimate the
probable expenditure incurred cannot certainly insist on specific
Maca 551/2008 -6-
evidence always. It will always have to be borne in mind that for
want of evidence it is only the claimant on whose shoulders the
burden rests who can be left to suffer. But that is no justification
for not awarding the irreducible minimum amount of expenses
that must have been incurred. It is in this view of the matter,
we agree that towards future expenses also an indisputable
minimum amount can be awarded. A provision can be made for
an amount of Rs.15,000/- towards future medical expenses.
8. Counsel argues that after having satisfied itself that
there was 115 days hospitalization, the Tribunal did not award a
reasonable amount as compensation for bystanders. No amount
was awarded for extra nourishment for the young injured minor
child aged 5 years. This inadequacy/difficulty deserves to be
corrected, argues the counsel. We agree with the same. We
are satisfied that an amount of Rs.17,250/- (115 x 150) can be
fixed as the total amount payable under the composite expenses
of bystander and extra nourishment.
9. The learned counsel finally contends that even assuming
that compensation for loss of earning capacity has been correctly
ascertained by employing multiplier-multiplicand method, the
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compensation awarded for loss of amenities is not adequate. We
are of the opinion that the Tribunal had accepted the report of
the Doctor that 30% disability has resulted and had further
assumed that 30% disability must have resulted in 30%
reduction in earning capacity and had further reckoned 15 as
the multiplier as permitted by the IInd Schedule of the Motor
Vehicles Act, has adopted the correct norms and no further
amount is liable to be paid for loss/reduction in earning capacity.
However, we find force in the submission of the learned counsel
for the appellant that the manifold reflections of the disability on
the life of the minor child have not been properly taken into
account while awarding compensation for loss of amenities. The
learned counsel for the appellant contends that ordinary pursuits
of a child cannot be undertaken by the claimant because of the
disability. Counsel further points out that marriage prospects of
the child will be seriously affected consequent to the vaginal and
urethral injury suffered. Ugly looking scars on both thighs will be
a permanent trauma for the child. In short, the quality of
enjoyment of life of the child would be seriously impaired by the
30% disability suffered by her. Shortening of expectation of life
Maca 551/2008 -8-
also must have resulted. In all these, altogether the Tribunal
has awarded Rs.61,000/- – for loss of amenities Rs.36,000/-
and for disfiguration Rs.25,000/-. These are inadequate and
unrealistic. Taking into account all reflections of the disability
on the quality of life of the child, a higher amount of
compensation must be awarded, urges the counsel. We are in
ready agreement with the learned counsel that adequate
compensation has to be paid taking into account all the relevant
circumstances. All deprivations/impairment in life’s activity
which the disability leads to have to be taken into account. We
take into account the fairly long period of time which the child
will have to live enduring all disabilities and inconveniences.
We take note of the deprivations, we take note of the
disfiguration and we take note of the consequent reduction in
quality of life. Considering all these, we are satisfied that for the
young child-claimant, a total amount of Rs.one lakh deserves to
be awarded under the composite head of loss of amenities
including disfiguration, marriage prospects, quality of enjoyment
of life etc.
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10. We are not satisfied that the amounts awarded under
any other head deserves appellate interference.
11. The above discussions lead us to the conclusion that the
appellant is entitled to the following further amounts as
compensation in addition to the amounts already awarded by the
Tribunal.
1)Treatment
expenses past : Rs.25,000/-minus 15,000/- = Rs.10,000/-
2)Future probable treatment Expenses = Rs.15,000/- 3) Extra nourishment and Bystanders
expenses: 115 x 150=Rs.17,250/- minus Rs. 5,000/- = Rs.12,250/-
4)Loss of amenities
Including disfiguration
Shortened
expectation of life,
Marriage prospects etc.:Rs.1,00,000/-minus 61000/ = Rs.39,000/-
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Total = Rs.76,250/-
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12. In the result,
a)this appeal is allowed in part.
b) the appellant is found entitled to a further amount of
Rs.76,250/- (Rupees seventy six thousand two hundred and
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fifty only) in addition to the amounts already awarded by the
Tribunal.
c) Needless to say, the entire compensation shall carry
interest at the rate awarded by the Tribunal for the period
directed.
d) All other directions of the Tribunal are upheld. Revised
directions regarding deposit/release shall be issued by the
Tribunal.
Sd/-
R. BASANT,JUDGE
Sd/-
M.C.HARI RANI, JUDGE
ks. TRUE COPY
P.S.TO JUDGE