IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 MACA.No. 1307 of 2005 D --------------------------------------------- OPMV.2845/1997 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER: ---------------------------------------- DIVYA S., D/O. S.S. NAIR, "DIVYA SREE", 32 SUBHASH NAGAR, EDAPPALLY, COCHIN-24. BY ADV. SRI.T.K.KOSHY RESPONDENT(S): RESPONDENTS: ------------------------------------------------ 1. N.J. TONY JACOB, S/O. JACOB, MYLANTHRA HOUSE, PERUMPADAPPU, PALLURUTHY, COCHIN-6. 2. V.P. ANIL KUMAR, S/O.PADMANABHAN, VADAKKEPARAMBIL HOUSE, KONAM VAZHI, PERUMPADAPPU, COCHIN-6. 3. THE ORIENTAL INSURANCE CO. LTD., EDAPPALLY, COCHIN-6. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 SRI.G.PRABHAKARAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.A.C.A. NO. 1307 OF 2005 D --------------------------------------------------- Dated this the 17th July, 2009 JUDGMENT K.M. Joseph, J. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. The Appeal is directed against the quantum of compensation. 2. Heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent. This is a case where the appellant was involved in a motor vehicle accident when she was 13 years of age. The accident took place on 30.5.1997. The appellant raised a claim for Rs.15 Lakhs. The tribunal has awarded a total sum of Rs.3,00,750/=. The injuries as seen narrated in Ext.A6 wound certificate are as follows: “Patient in haemorrhagic shock. Extensive degloving injury back of chest and loin. MACA.NO.1307/05 D 2 Crush injury to muscles and tissues extending from (R) lower chest to right side of abdomen to (R) ingunial region. Medial aspect of mid 3rd of (R) thigh with tissue loss. Abrasions over (L) forearm and (R) knee. Bleeding per Rectum and bleeding per vagina. Large penetrating wound over the perineum involving the urethra and vagina. S/0. fracture pelvis and sacrium. S/0 blunt injury abdomen. X-ray chest - evidence of (L) diaphragm with hernia. Emergency explorating laparotamy was done.” Emergency surgery was done for the crush injuries including fracture of the pelvis. The findings of Laparotomy are as follows: “Large lacerated wound to perineum involving Aagina, urethra and anus. Urethra was completely anulsed. Distal 2/3rd 08 Vagina torn apart. MACA.NO.1307/05 D 3 Anus - muscle Sphincter torn completely and bleeding profusely. Large lacerated wound with muscle loss over right lower chest, abdomen and right leg and gluteal area.” There was mal-alignment of the pelvic fracture. In August, 1998, corrective osteotomy of right femur was done. This is a case where the Medical Board certified that the appellant has a permanent disability of 55 per cent. The tribunal has found that the appellant was a brilliant student. She lost one year. The following is the break up of the award of compensation by the tribunal: Attendant expenditure Rs. 6,000/= Extra-nourishment Rs. 4,500/= It is stated that due to the loss of service to the parents.. Rs. 5,000/= Pain and suffering Rs. 40,000/= Loss of amenities Rs. 30,000/= Loss of earning power Rs.1,23,750/= Physical disability Rs. 50,000/= MACA.NO.1307/05 D 4 Loss of marriage prospects Rs. 25,000/= Disfiguration Rs. 10,000/= 3. Shri T.K. Koshy, learned counsel for the appellant would contend that a tragic accident has resulted in the life of a young girl being shattered. He would submit that the amounts awarded under the heads are low. He would rely on a decision of the Madras High Court in Cholan Roadways Corporation Ltd. v. Ahmed Thambi and Others (2006 ACJ 2703). Therein, the Full Bench, inter alia, held as follows: “19. Thus, in order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that Tribunal while awarding damages, should itemize the award under each of the head, namely, pecuniary losses and the non-pecuniary losses. In the non-pecuniary losses, the Claims Tribunal shall consider: (a) pain and suffering; (b) loss of amenity; (c) loss of expectation of life, hardship, mental stress, etc; and (d) loss of prospect of marriage, and under the head MACA.NO.1307/05 D 5 pecuniary losses, the Claims Tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earnings, if any, from the date of the accident till the date of trial. When loss of earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemized. The reference is answered accordingly. C.M.A. No.231 of 1994 be placed before the Single Judge for final disposal in the light of our answer to the reference.” He would further contend that though it is true that Rs.50,000/= has already been awarded towards disability, apart from awarding Rs.1,23,750/= towards loss of earning power, if the multiplicand is taken as Rs.1,775/=, the amounts which are awarded aforesaid can be justified. He also points out that though there is no claim as such, there has been a loss of expectation of life having regard to the injuries suffered by the appellant. He further points out that the appellant has not been MACA.NO.1307/05 D 6 given reimbursement of the entire medical bills, though it is true that very large portion of the medical bills were reimbursed by the Company in which the father of the appellant was working. He points out that Rs.17,224/= remains unpaid and he referred us to a Certificate in this regard. He points out that there are other bills also. He also referred us to Ext. A12 Certificate pointing out how the marriage prospects are affected by the injuries suffered. Learned counsel for the appellant points out that the appellant has produced further bills vide Ext.A19. 4. Per contra, learned counsel for the third respondent Insurance Company would contend that on the whole, the tribunal has awarded a just compensation. He further points out that the sum of Rs.5,000/= awarded as loss of service to parents cannot be justified. He also points out the appellant was only 13 years of age and the notional income taken at Rs.1,250/= is only to be justified. 5. It is quite clear that the appellant suffered serious injuries at a young age. She was in hospital for a total period of MACA.NO.1307/05 D 7 182 days in five spells. This means that at her age, she must have been undergone tremendous pain and stress also. Accordingly, we feel that the appellant should be awarded Rs.10,000/= more towards pain and suffering. We further find that inclusive of the amount of Rs.17,224/=, the appellant can be granted a total sum of Rs.25,000/= more towards medical expenses. 6. The tribunal has awarded Rs.1,000/= towards loss of one year. The tribunal has noted that the appellant was a brilliant student. Certainly, we feel that the tribunal ought to have awarded at least Rs.10,000/= more and accordingly, we award Rs.9,000/= more for the loss of studies. We further feel that the appellant ought to be awarded a sum of Rs.20,000/= more towards loss of amenities, having regard to the nature of the injuries, the period of treatment and the after-effect of the injuries. Further, we feel that the amount awarded towards loss of marriage prospects is on the lower side. There is Ext.A12 Certificate of the Doctor regarding the after-effect of the injuries MACA.NO.1307/05 D 8 on her life. There is also evidence regarding the involvement of perineum region where there is fracture of the pelvis and sacrium. It is noted that the Urethra was completely anulsed. It is also noted that Distal 2/3rd 08 Vagina was torn apart. Therefore, we award Rs.25,000/= more under the head Loss of Marriage Prospects. We have taken notice of the decision of the Madras High Court wherein the Court took the view that compensation can be awarded for loss of expectation of life, also as a non-pecuniary compensation. In the nature of the large number of injuries and the age at which the injuries were suffered, we feel that the the appellant would appear to be justified in demanding that just amount should be awarded towards loss of expectation of life and we award Rs.15,000/=. We also award a sum of Rs.10,000/= more under the head bystander expenses. Thus, the appellant would have been entitled to Rs.1,14,000/= more by way of enhancement. However, we cannot ignore the fact that the appellant has been awarded a sum of Rs.50,000/= under the head disability and MACA.NO.1307/05 D 9 Rs.5,000/= towards loss of earnings, both of which are clearly unjustified. It is clear that the tribunal has correctly taken the notional income of a thirteen year old girl at Rs.1,250/= per annum and there is no question of increasing it to Rs.1,775/= by way of justifying the amount which is illegally granted by the tribunal by way of disability. Thus, having regard to the said facts, we award a sum of Rs.59,000/= more with interest at 7.5 per cent from the date of the petition till the date of realisation from the third respondent. It is open to the appellant to approach the tribunal seeking orders for withdrawing the amount after the deposit is made. The Appeal is allowed as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge