IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 MFA.No. 951 of 2002 ---------------------------- OPMV.610/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ................................. APPELLANT: PETITIONER IN OP (MV) ----------------------------------------------------- AMRITHA, (MINOR), AGED 10 1/2 YEARS, D/O. CHANDRAN, REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER DHYIK, ADUVODY HOUSE, CHERUVALLOOR P.O., MUKUNDAPURAM. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS: RESPONDENTS IN O.P.(MV) ----------------------------------------------------------------- 1. C.J.SEBASTIAN, CHATHENIKERIL HOUSE, SOUTH PARAVOOR, ERNAKULAM DISTRICT. 2. ORIENTAL INSURANCE COMPANY LTD., ENSIGN BUILDINGS, JOSE JUNCTION, ERNAKULAM. 3. K.J.SEBASTIAN, S/O. JOHN KARUKAPPILLY VEETTIL, SYRIAN CHURCH ROAD, ALUVA. R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy & K.Hema, JJ. -------------------------------------- M.F.A. No. 951 of 2002 --------------------------------------- Dated this the 13th day of March, 2008 Judgment Koshy,J. Appellant at the age of 3 sustained injuries due to the negligence of the driver of the vehicle insured by the second respondent insurance company. She claimed compensation of Rs.1.5 lakhs. Total compensation awarded by the tribunal is only Rs.20,000/- with interest and the tribunal directed the second respondent insurance company to deposit the same. The only dispute is regarding the quantum of compensation. 2. Following are the injuries sustained by the child as can be seen from Ext.A3 wound certificate: "1. Fracture tibia; 2. Crush injury to the medial aspect of left ankle; 3. Skin abrasion right knee; 4. Deep tissue exposed; and 5. Skin abrasion (L) knee medial aspect." She was an inpatient for 29 days. Ext.A5 is the treatment-cum- M.F.A.No. 951/2002 2 discharge certificate. External fixator and skin grafting were done. The doctor who treated the appellant has assessed 20% disability finding inability for inversion movement and loss of sensation. Ext.A7 is the disability certificate issued by another doctor who also assessed 20% disability. The doctor conducted clinical and radiological examinations and found that there was loss of inversion movement of left ankle. Limitation of dorsi-flexion of left ankle of last 15o and plantar flexion of last 10o with pain were found and there was difficulty to run or jump or stand for long time, to turn left foot inside, to stand on heel etc. The disability certificate issued was proved by examining the doctor as PW1. The tribunal did not award any compensation for loss of earning capacity or disability except Rs.5,000/- as there was crush injury and there was ugly appearance. Rs.4,000/- was awarded towards pain and suffering and for loss of amenities another Rs.3,100/- was awarded. According to the tribunal, there cannot be any permanent disability because of the young age, but, the tribunal herself noticed that there was crush injury and there was an ugly appearance to fix the disability at 20%. Considering these factors, we are of the opinion that at least 10% disability ought to have been assessed by the tribunal. Claimant was the only child. Notional income fixed by the M.F.A.No. 951/2002 3 second schedule can be taken into account. Rs.15,000/- is the annual income fixed under the second schedule and 15 is the multiplier. If that be so, compensation payable will be Rs.22,500/- (Rs.15000 x 15 x 10 ) for discomforts, inconvenience, disability, 100 loss of earning power, loss of studies etc. instead of Rs.3,100/-. Hence, additional amount payable under this head will be Rs.19,400/-. An amount of Rs.5,000/- was awarded for ugly appearance as compensation for disfigurement as she was an young girl and the ugly appearance was there even at the time of examination. Only Rs.4,000/- was awarded towards pain and suffering. We are of the opinion that at least Rs.5,000/- ought to have been awarded under this head because three skin grafting was done and there was crush injury etc. Only Rs.5,400/- was awarded towards medical expenses whereas actual medical bills were for Rs.5,399/-. Appellant was in the hospital for 29 days and there will be many expenses in the hospital which will not be covered by bills and we award Rs.3,000/- more towards medical expenses. Therefore, additional compensation payable will be Rs.23,400/- over and above the amount decreed by the tribunal. The above amount of Rs.23,400/- should be deposited by the second respondent M.F.A.No. 951/2002 4 insurance company with 7.5% interest from the date of application till its deposit. The incident occurred in 1994. The additional amount should be deposited in a nationalised bank in fixed deposit and appellant is allowed to withdraw the same when she attains the age of 21 or at the time of marriage whichever is earlier. J.B.Koshy Judge K. Hema Judge vaa M.F.A.No. 951/2002 5 J.B. KOSHY AND K.HEMA ,JJ. ------------------------------------- M.F.A. No. 951 of 2002 ------------------------------------- Judgment Dated:13th March, 2008