IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 41 of 2001()
1. SAFNA, D/O.ABOOBACKER
... Petitioner
Vs
1. RAMANKUTTY
... Respondent
For Petitioner :SRI.T.M.SUNIL
For Respondent :SRI.RAJESH THOMAS
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :04/07/2007
O R D E R
J.B. KOSHY and K.P.BALACHANDRAN, JJ.
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M.F.A. No.41 of 2001
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Dated this the 4th day of July, 2007
Judgment
Koshy, J.
A six year old girl child while walking through
Mannarkkad – Perinthalmanna road was hit by a lorry
bearing registration No. TDV 3769 which was driven by the
first respondent in a rash and negligent manner. The
lorry was owned by the second respondent and insured by
the third respondent. As a result of the accident, she
suffered serious injuries like crush injury on the right
leg, total loss of vascularity and extensive degloving
injury on left thigh, amputation of right leg, wound on
left thigh and knee and skin grafting also had to be
done. She filed a claim petition through her guardian
for Rs.7,29,100/= limited to Rupees Six lakhs as
compensation. Tribunal found that the accident occurred
due to the negligence of the lorry driver and the lorry
had valid coverage of insurance by the policy issued by
the third respondent. But, tribunal only awarded a
compensation of Rs.1,53,576/=. Only quantum of
compensation is disputed in this appeal.
M.F.A.No.41/2001 2
2. Ext.A4 is the wound certificate. The
details of injuries noted are:
“1. Crush injury (R) leg with degloving
injury (R) leg held to position above a thin
tag of skin. Distal portion and avascular.
2. Degloving injury lateral aspect of
(L) thigh with abrasion (L) iliac foss and
abdomen.”
She was hospitalised for a period of about 40 days, i.e.,
got admitted on 8.3.1997 and was discharged on 16.4.1997.
During the period, she underwent emergency BK amputation
of right leg. Wound debridment and suturing to left
thigh and knee wound. Skin grafting was done on
29.3.1997. Exts.A5 and A6 are treatment and disability
certificates. In Ext.A7, it is certified by the doctor
that the petitioner is having permanent partial
disability of 70%. The tribunal found as follows at
paragraph 17 of the order:
“17. The injuries sustained to
petitioner was grievous. She underwent
below knee amputation of right leg and she
uses artificial shoe to limit and contain
the impact of amputation affecting
mobility. She spent heavy medical bill
amount for treatment purposes. The
amputation of right leg below knee has
caused disability as well as disfigurement
and has affected marriage prospects of herM.F.A.No.41/2001 3
in future life.”
3. With regard to disability compensation, the
tribunal held as follows at paragraph 20:
“20. The injuries also require to be
compensated. It has cast permanent
disability of 70% on petitioner. However,
the doctor is not examined and the
disability is stated as partial permanent in
nature. Taking a mediocre percentage of
disability at 60%, a sum of Rs.75,000/= is
allowed as compensation under the head
disability. The injury also requires to be
compensated. Allowing a sum of Rs.14,000/=
is justified.”
We are of the opinion that tribunal was not justified in
a mediocre assessment of permanent disability. There was
amputation of right leg below knee and crush injury on
the right leg. Skin grafting was done on the right leg.
Even though contention of the counsel for the appellant
to compensate has to be granted for 100% loss of earning
power due to disability should be granted as the girl
child with the disability will not be able to get any job
in future and her life itself has become miserable. As
found by the tribunal, she lost her prospects for married
M.F.A.No.41/2001 4
life or employment. She will be a liability to others.
She has to depend on others for everything. She has to
wear artificial leg and shoe. Disability certified is
not disputed by the insurance company or any other
respondent. Since she was only 6 year old at the time of
accident, she has to change the artificial leg and shoe
periodically. Hence, we are of the opinion that there is
no justification for awarding compensation for loss of
earning power and disability “taking a mediocre
percentage of disability at 60%” and awarded a sum of
Rs.75,000/-. She is entitled to compensation for 70%
disability as certified by the doctor though it may
amount to 100% loss of earning power and consequent loss
of earning.
4. Tribunal did not award compensation on a
scientific manner. A three member bench of the Supreme
Court in Smt.Supe Dei and others v. M/s.National
Insurance Company Ltd.and another (JT 2002 (Suppl.1) SC
451), held that the second schedule of the Motor Vehicles
Act is framed for the purpose of awarding compensation
under section 163-A, but, it serves as a guideline for
determination of compensation under section 166 of the
Motor Vehicles Act. Since the victim of the accident in
M.F.A.No.41/2001 5
that case was aged 32, considering the second schedule,
Hon’ble Supreme Court accepted 17 as the multiplier. In
United India Insurance Co. Ltd. v. Patricia Jean Mahajan
and others (JT 2002 (5) SC 74), the Apex Court held that,
except in very rare cases, multiplier system should not
be deviated from. The other methods, which were in vogue
prior to the introduction of the multiplier system, were
held to be no more good system. It was further held that
normally the multiplier, as indicated in the second
schedule, should be applied. Though the second schedule
is found to be a safe guide for the purpose of
calculation of the amount of compensation, in special
circumstances, it can be varied. In that case, it was
also held that if the multiplicand is very high, a lesser
multiplier can be taken. In Abati Bezbaruah v. Dy.
Director General, Geological Survey of India and another
((2003) 3 SCC 148), it was held that structured formula
mentioned in the second schedule gives guidelines for
determination of the amount of compensation in terms of
section 166 of the Motor Vehicles Act. Deviation from the
structured formula can be resorted to only in exceptional
cases and ordinarily the above multiplier system should
be followed. In 1994, when second schedule was framed,
notional income of a non-earning person is fixed as
M.F.A.No.41/2001 6
Rs.15,000/= per annum. This accident is occurred in
1997. Hence, there is no need to enhance the notional
income fixed in the second schedule for calculation of
compensation. Under the second schedule, multiplier
fixed for children below the age of 15 year is 15. If
compensation is calculated for disability and loss of
earning power due to disability is calculated, it will be
Rs. 15,000 x 70 x 15 = Rs.1,57,500/=. Tribunal has
100
awarded compensation for disability at Rs.75,000/= and
injury compensation at Rs.14,000/=. If that is deducted,
additional compensation payable will be Rs.68,500/=.
5. In the claim petition Rs.6,00,000/= was
claimed as expenses for future medical treatment. No
amount was awarded by the tribunal for future medical
expenses. A three-member Bench of the Hon’ble Supreme
Court in Nagappa v. Gurudayal Singh and ohters (2002 AIR
SCW 5345 – AIR 2003 SC 674) held as follows:
“23. However, it is to be clearly
understood that M.V. Act does not provide
for passing of further award after final
award is passed. Therefore, in a case where
injury to a victim requires periodical
medical expenses, fresh award cannot be
passed or previous award cannot be reviewed
when the medical expenses are incurred afterM.F.A.No.41/2001 7
finalisation of the compensation
proceedings. Hence, only alternative is
that at the time of passing of final award,
Tribunal/Court should consider such
eventuality and fix compensation
accordingly. No one can suggest that it is
improper to take into account expenditure
genuinely and reasonably required to be
incurred for future medical expenses.
Future medical expenses required to be
incurred can be determined only on the basis
of fair guess work after taking into account
increase in the cost of medical treatment.”
Here, accident occurred to the minor girl at the age of
six. Artificial shoe and leg have to be replaced
periodically. In Nagappa’s case (supra), appellant was
granted Rupees One lakh as additional compensation
considering periodical replacement of artificial leg and
for future treatment expenses. We are of the opinion
that at least Rs.30,000/= should be granted in this case
for future medical expenses like expenses for replacement
of artificial shoe and leg etc.
6. It is contended that several operations
were done. Skin grafting was done and she was
hospitalised for more than 40 days and thereafter also
she had to continue the treatment, but, only Rs.4,000/=
was granted for treatment expenses apart from
M.F.A.No.41/2001 8
reimbursement on the basis of actual bills produced for
purchase of medicines. Rs.4,000/- is very low. No
amount was granted for other treatment expenses. There
were many expenses uncovered by the bills. We are of the
opinion that at least Rs.1,500/- more should be given
under this head. Compensation granted for disfigurement
at Rs.5,000/= and for pain and suffering at Rs.15,000/=.
Considering the amputation, crush injuries and various
operations and mental agony, we are of the opinion that
at least Rs.5,000/- more should be given under this head
and compensation for attendant’s expenses at Rs.3,000/=
are very low as she needs continuous help of a third
person throughout her life. It is also argued that
compensation granted under all other heads like
transportation etc. are very low. Considering the total
amount granted we are not enhancing compensation granted
on other heads.
The additional amount of Rs.85,000/- shall be
deposited by the third respondent insurance company with
7% interest from the date of application till its
deposit. On deposit of the amount, Rs.25,000/- shall be
released to the guardian of the girl for medical expenses
of the child. Balance shall be deposited in a
nationalised bank for ten years and periodical interest
M.F.A.No.41/2001 9
shall be allowed to be withdrawn by the father till she
attains majority and then to her after she attains
majority.
Appeal allowed partly.
J.B.KOSHY
JUDGE
K.P.BALACHANDRAN
JUDGE
vaa
M.F.A.No.41/2001 10
J.B. KOSHY AND
K.P.BALACHANDRAN, JJ.
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M.F.A.NO.41/2001
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JUDGMENT
Dated:4th July, 2007