IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1348 of 2006()
1. SUMAYYA, D/O.T.P.MEMI,
... Petitioner
Vs
1. ORIENTAL INSURANCE CO.LTD.,
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :SRI.A.R.GEORGE
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :06/04/2009
O R D E R
R. BASANT &
C.T. RAVIKUMAR, JJ.
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M.A.C.A. No.1348 of 2006
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Dated this the 6th day of April, 2009
JUDGMENT
Basant,J.
The claimant before the Tribunal is the appellant before
us. She – a minor girl child aged about 11 years on the date
of the accident, had staked her claim for compensation through
her guardian for the loss suffered by her in a motor accident
which took place on 11/4/97. Crush injury was suffered on the
right leg. Amputation of the right leg below the knee and
fracture of the left humerus are the major injuries suffered.
She was in patient for a period of 33 days. She had to undergo
surgery – craniotomy. She continued treatment thereafter.
She has suffered permanent disability to the tune of 60% as a
result of the accident.
2. Before the Tribunal, P.W1 – the victim, as also two
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Doctors who attended on her were examined. Exts.A1 to A9
were marked. The Tribunal, on an anxious consideration of all
the relevant inputs, directed payment of an amount of
Rs.3,32,000/- as compensation against an amount of Rs.6 lakhs
claimed by the claimant. The amount was awarded under the
following heads:
"Cloth and articles - Rs.500/-
Extra nourishment - Rs.2,000/-
Bystander's expenses - Rs.5,000/-
Transportation to hospital - Rs.5,000/-
Medical expenses
(against bills produced) - Rs.92,300/-
Pain and suffering - Rs.25,000/-
Loss of amenities - Rs.10,000/-
For disfiguration, loss
of marriage prospects]
etc., - Rs.30,000/-
Reduction in earning
capacity (1500 x 12 x 15 x
60/100) - Rs.1,62,000/-
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Total - Rs.3,31,800/-
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Interest was directed to be paid at the rate of 9% per annum.
3. The appellant claims to be aggrieved by the impugned
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award. 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 contends that the
amounts have not been awarded reasonably and realistically
for loss of amenities/disfiguration/loss of marriage prospects/
reduction in the quality of life. We note that the Tribunal has
already awarded a total amount of Rs.40,000/- as compensation
under that head. The injured is a 11 years old minor girl.
Amputation below the knee of the right leg has been suffered by
her. Artificial limb has to be used now. A total amount of
Rs.40,000/- has been awarded under this head. The learned
counsel for the appellant submits that the 11 year old minor
child will have to endure the trauma of physical disability for a
period of about 6 decades – going by the longevity of an average
Indian. It is unlikely that she will be able to live a proper
married life. Taking all these circumstances into account
reasonably higher amount must have been awarded by the
Tribunal under the composite heads of loss of amenities etc.
Rs.40,000/- awarded under this head is too meager and
insufficient, contends the learned counsel for the appellant.
4. The learned counsel for the Insurance Company, on the
contrary, contends that the amount of Rs.40,000/- has been
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awarded in addition to the amount of Rs.25,000/- awarded under
the head of pain and suffering as also Rs.1,62,000/- awarded for
reduction in earning capacity. The learned counsel for the
appellant contends that only Rs.1,500/- has been reckoned as
the multiplicand while working out the reduction in earning
capacity. The child was in the school and was aged only 11
years. Under the 2nd Schedule to the M.V. Act from 1994 even
for a non-earning person’s income can be assumed to be
Rs.1,250/- per mensem. The Tribunal, in the circumstances of
this case, has reckoned Rs.1,500/- as the monthly income and
60% as claimed by the appellant has been accepted as the
reduction in earning capacity. Under the head of reduction in
earning capacity, we are not persuaded to award any higher
amount further. Taking note of the impact of the physical
disability on the quality for enjoyment of the claimant/appellant
for a fairly long period of 60 years during which she can be
expected to suffer deterioration in the quality of live, we are
satisfied that a higher amount can safely be awarded under the
composite head of loss of amenities, disfiguration, loss of
marriage prospects etc. We are satisfied that award of an
amount of Rs.75,000/- (Rs.35,000/- more) shall be eminently
reasonable.
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5. The learned counsel for the appellant contends that an
artificial limb has to be used for the appellant now and for that
future expenses will be required. No amount has been awarded
under the head of future expenses. Reasonable amount should
be awarded under this head, contends the learned counsel. We
are satisfied that an amount of Rs.10,000/- can be awarded
under the head of probable future expenses etc.
6. The learned counsel finally contends that the
educational prospects of the child has been affected. The extent
of injury had compelled her to discontinue her studies in school.
There is nothing to indicate the permanent discontinuation of the
studies; but it only be fair to assume, considering the nature of
the injury, treatment, hospitalisation and disability, that the
educational progress must have been retarded. We are satisfied
that an amount of Rs.10,000/- can be awarded under the head of
loss of educational prospects. We are not persuaded to agree
that the amount awarded under any other head deserves or
warrants interference.
7. On the basis of the additional amounts awarded, we hold
that the appellant is entitled to a total amount of Rs.55,000/-
more as per the details given below in addition to the amounts
already awarded by the Tribunal:
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1. Loss of amenities, disfiguration,
loss of marriage prospects etc.,
(Rs.75,000/- minus Rs.40,000/-) – Rs.35,000/-
2. Expenses for future treatment
(no amount awarded) - Rs.10,000/-
3. Loss of educational prospects,
retardation of her studies
(no amount awarded) - Rs.10,000/-
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Total - Rs.55,000/-
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8. Needless to say, the entire amount of compensation
awarded shall carry interest from the date of the petition at the
rate directed by the Tribunal.
9. This appeal is allowed in part to the above extent.
R. BASANT
(Judge)
C.T. RAVIKUMAR
(Judge)
Nan/
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