IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 MACA.No. 357 of 2003() ---------------------- OPMV.707/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA APPELLANT/PETITIONER KUMARI AMALU, D/O.BABU, AGED 8 YEARS, RESIDING AT MARUTHOLIL HOUSE, KANCHIYAR MINOR, REPRESENTED BY HER FATHER AND NEXT FRIEND M.M.BABU, MARUTHOLIL HOUSE, KANCHIYAR. BY ADV. SRI.K.K.CHANDRAN PILLAI BY ADV. SRI. JAYACHANDRA BABU RESPONDENTS: RESPONDENTS ( 1 TO 6 ) 1. B.BALAKRISHNAN, S/O.VELAYUDHAN, RESIDING AT SHIJU BHAVAN, DARHAKKADU, AYRAKUZHI P.O. KADAKKAL, KOTTARAKKARA. 2. VARGHESE, S/O.MANI, KALAYIL HOUSE, ANAKKARA P.O., IDUKKI DISTRICT. 3. UNITED INDIA INSURANCE COMPANY LIMITED, PUNALOOR BRANCH, REPRESENTED BY ITS BRANCH MANAGER, PUNALOOR P.O., PATHANAMTHITTA DISTRICT. 4. SABU C.V., S/O.VASU, CHAGALIKUNNEL HOUSE, KUZHIKKAU P.O., VANCHIMALA. 5. SUDHAN K.P., KUNNATHUPARA HOUSE, MANAKKADU P.O., THODUPUZHA TALUK. 6. UNITED INDIA INSURANCE COMPANY LIMITED, MUVATTUPUZHA BRANCH. ADV. SRI.PMM.NAJEEB KHAN FOR R3 SRI.P.P.THAJUDEEN FOR R5 SRI.ALEXANDER GEORGE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. NO. 357 OF 2003 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 16TH DAY OF DECEMBER, 2009. J U D G M E N T Raman, J. Appellant is the injured/claimant in O.P. (MV) 707/1998. The accident occurred on 10.5.1998 when the appellant/claimant along with her aunt was travelling in an auto rickshaw to Kumily along the Puttadi - Anakkara road. When they reached near Mount Forest School, a mini lorry bearing No. KL 3-7263 came from the opposite direction at over speed, in a rash and negligent manner and hit against the auto rickshaw causing serious injuries to the appellant/claimant. She was treated at St. John's Hospital, Kattappana and also at the Medical trust Hospital, Ernakulam. Her right foot was amputated and replanted resulting in shortening of that leg by 1 1/2 inches. She was aged three years at the time of the accident. Negligence was attributed on the part of the driver of the mini lorry and a total amount of Rs.6,50,000/- was claimed by way of compensation. 2. The Tribunal found that the driver of the mini lorry was negligent as a result of which the accident occurred and awarded a total MACA 357/2003 2 sum of Rs. 3,54,000/- by way of compensation under different heads along with interest at 9% from the date of petition till realisation. Inter alia contending that the compensation awarded is inadequate and not the just compensation to be awarded, this appeal has been preferred. 3. We have heard both sides. the only point that arises for consideration is as to what are the heads under which the appellant is entitled for enhanced compensation. 4. Evidence was let in and the doctor was examined as PW.1 to bring home the fact that at least five surgeries are required to be performed on the girl child of three years old on different stages. Two surgeries were already performed and four or five more operations have be performed in future. Estimating the expense that may be incurred towards future surgery an amount of Rs. 1,25,000/- was awarded as against the claim of Rs. 1,50,000/- . For the surgeries already performed, compensation has been awarded. But for the future medical treatment including surgery only an amount of Rs. 1,25,000/- is awarded as against the claim of Rs. 1,50,000/-. Along with I.A. 3810/2009, the appellant has produced the bills and vouchers and discharge summary to show that even for the subsequent two operations performed after the Award, she had to spent more than Rs. 1,00,000/-. It is contended that having due regard to the increase in the MACA 357/2003 3 medical expenditure that may have to be incurred, the compensation awarded under the head 'future treatment' is inadequate. There is force in this contention. But considering the nature of the surgery and also since three more surgeries are yet to be performed, one can not definitely say as to the actual expenditure that may be incurred in this regard. Appellant's claim was only for an amount of Rs. 1,50,000/- towards future treatment and Rs. 1, 25,000/- was already awarded. Therefore, as against the claim made under this head, only Rs. 25,000/- remains to be awarded. But as rightly pointed out, while working out the compensation, it is the overall amount claimed that has to be taken into account and recently, the Apex Court has held that while arriving at a just compensation, even in the original claim a lesser amount is claimed, that will not in any way take the discretion of the court in awarding a larger amount of compensation in appropriate cases. Here, in this case, since the total amount of compensation claimed is Rs. 6,50,000/- and only 3,54,000/- is awarded and considering the evidence now produced before us, we think it is appropriate to award an additional compensation of Rs. 55,000/- more under the head 'future treatment'. 5. The appellant is not awarded any compensation towards loss of amenities. Considering the age of the appellant and considering the fact that she had been in hospital for more than 28 days and various surgeries to MACA 357/2003 4 be performed to correct the shortening of the leg, we think it is appropriate to award an amount of Rs. 25,000/- under this head. Towards transportation expenses, the appellant has produced some vouchers to show that the distance from the place of her residence to the hospital is 175 Kms. and to travel by a car, the taxi fare itself will come to Rs. 2,900/- per trip. Hence we award an additional compensation of Rs. 10,000/- towards 'transportation expenses'. 6. For pain and suffering, only an amount of Rs. 30,000/- is awarded. Ext.A7 wound certificate shows that the appellant/claimant had suffered crushed amputation of the right foot at the ankle and avulsion of the tendons from the origin. The amputated foot was taken in a plastic bag covered with ice and at the hospital, it was re-implanted. The tendons were anchored and the appellant was in hospital for more than 20 days at that time. As per the doctor's evidence, two surgeries are performed already and four or five surgeries are to be performed in future. Considering the tender age of the appellant we think it will be appropriate to award a further sum of Rs. 25,000/- for pain and suffering. Thus, the appellant will be entitled for an amount of Rs. 1,15,000/- by way of additional compensation under different heads as discussed above. The compensation awarded under the other heads are found to be adequate which does not required any MACA 357/2003 5 interference. In the result, the appellant will be entitled for enhanced compensation of Rs. 1,15,000/- (Rupees One lakh and fifteen thousand only), out of which Rs.55,000/- being compensation awarded for future treatment, will not carry any interest. The balance amount of Rs. 60,000/- will carry interest at the rate of 7% per annum from the date of petition till payment. The above said amount shall be deposited or paid by the Insurance Company to the appellant within a period of six weeks from the date of receipt of a copy of this judgment. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/-