IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 MACA.No. 551 of 2008-E ---------------------- OPMV.429/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT: APPLICANT: ------------------------ MUNEERA (MINOR), REPRESENTED BY HER FATHER HAJA HUSSAIN, VALIYA PLANKALAVILA PUTHEN VEEDU, ARALUMMOODU P.O., NEYYATTINKARA. BY ADV. SRI.R.T.PRADEEP RESPONDENTS: RESPONDENTS; --------------------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C., TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM. 2. THE MANAGER, NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICER, ST.JOSEPH'S PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM. ADV. SRI.JOE KALLIATH FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 551 OF 2008 ============================ 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 Maca 551/2008 -2- 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 Maca 551/2008 -4- 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 Maca 551/2008 -5- 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 Maca 551/2008 -7- 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. Maca 551/2008 -9- 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/- ---------------------------------- Total = Rs.76,250/- ========= 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 Maca 551/2008 -10- 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