Partly allowed

Shaniba v. S.Mohanan

Kerala HC31 May 2011MACA/603/2004

Case brief

AI extract

What is this about?

High Court allowed an appeal to enhance compensation in a motor accident claim. The Court modified the Tribunal's award, granting additional amounts for permanent disability, future treatment expenses, loss of amenities, and pain and suffering due to severe leg injury sustained by an 8-year-old child.

What did the court decide?

Award modified by granting additional compensation of Rs. 2,25,000/- inclusive of disability, future treatment, and pain and suffering; insurer directed to deposit amount within two months.

Shaniba Vs S.Mohanan — Medical Negligence | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER &

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THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

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TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933

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MACA.No. 603 of 2004()

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---------------------OPMV.2341/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR

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APPELLANT/PETITIONER

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SHANIBA, D/O. ABOOBACKER, AGED 8 YEARS (MINOR), REPRESENTED BY HER FATHER/ GUARDIAN, ABOOBACKER, VADAKKEPARAYIL HOUSE, PAINKANNOOR (P.O), KUTTIPPURAM, MALAPPURAM DIST.

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BY ADV. SRI.K.P.MUJEEB

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RESPONDENTS/RESPONDENTS

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S.MOHANAN, S/O. SREEDHARAN, MANGALA PADITHARA HOUSE, NEAR GOVT.HOSPITAL, VAIKKOM.

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JOSE MATHEW, S/O. MATHEW, ARUKUZHAPPIL HOUSE, MUTTICHIRA P.O., KOTTAYAM, KADUTHURUTHY.

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THE UNITED INDIA INSURANCE CO. LTD., K.K. ROAD, P.B.NO.210, KOTTAYAM.

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ADV. SMT.DEEPA GEORGE FOR R3

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.K.BASHEER & P.Q.BARKATH ALI, JJ.

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M.A.C.A.No. 603 OF 2004

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Dated this the 31^st day of May, 2011

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JUDGMENT

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Barkath Ali, J.

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Appellant is the claimant in O.P.(MV)No.2341/1996 on the file of Motor Accidents Claims Tribunal, Tirur. In this appeal she challenges the judgment and award of the Tribunal dated October 31, 2001 awarding a compensation of Rs.3,14,000/- for the loss caused to

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him on account of the injuries sustained by her in a motor accident. She sustained the following injuries in that accident that occurred on July 24, 1994 at about 4.30 p.m.

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Severe crush injury on her right leg and there is compound fracture right tibia with loss of femur.

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The accident happened while the claimant was walking

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along Kuttipuram-Valanchery public road. When she reached at Pandikassala, she was knocked down by the lorry bearing Reg.No.KL5/3303 driven by the first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a

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MACA.No.603/2004 2

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compensation of Rs. 10,00,000/-.

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Respondents 1 and 2, the driver and the owner of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy.

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Pws 1 and 2 were examined and Exts.A1 to A6 were

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marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by first respondent and awarded a compensation of Rs.3,14,000/- with interest @ 9% per annum from the date of petition till realisation and a cost of Rs.800/-.

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The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal.

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Heard the counsel for the appellant/claimant and the counsel for the Insurance Company.

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The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first

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MACA.No.603/2004 3

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respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation.

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The Tribunal awarded a total compensation of

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Rs.3,14,000/-. The break up of the compensation amount awarded is as under:

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Transport to hospital - Rs.	3,000/-
Extra nourishment - Rs.	8,000/-
Bystander's expenses - Rs.	8,000/-
Medical expenses - Rs.1	,40,000/-
Future expenses - Rs.	40,000/-
Pain and suffering - Rs.	20,000/-
Permanent disability - Rs.	50,000/-
Disfiguration - Rs.	25,000/-
Loss of amenities - Rs.	20,000/-

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Counsel for the claimant sought enhancement of

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compensation for the disability caused, for future treatment expenses,

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for loss of amenities and enjoyment of life and for pain and suffering endured.

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The claimant was a girl aged 8 at the time of the accident.

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She sustained serious injuries. She has suffered a permanent disability of 35% as certified by the doctor in Ext.A5. The present condition of

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MACA.No.603/2004

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the claimant has been described by the Tribunal thus :

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“ I have examined the child from my chambers. There is no flesh on her right leg. The right leg is like a ruler and seeing her right leg, it will make an ugly impression and aversion in the mind.”

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The Tribunal awarded Rs.50,000/- for the permanent disability caused. Taking into consideration the above disability caused to the claimant, we feel that an additional compensation of Rs. 1,00,000/- would be reasonable for the disability caused to the claimant.

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Rs.40,000/- was seen awarded for future treatment expenses. The appellant produced certificates issued from Specialists Hospital, Ernakulam which shows that subsequently also she underwent treatment. Therefore, taking into account the nature of the treatment the claimant has undergone and for future treatment expenses, we feel that an additional compensation of Rs. 75,000/would be reasonable.

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The Tribunal awarded Rs.20,000/- for pain and suffering endured and Rs. 20,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the

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MACA.No.603/2004

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claimant, we feel that an additional compensation of Rs. 25,000/- for loss of amenities and enjoyment in life and a further amount of Rs.25,000/- for pain and suffering endured would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same.

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In the result, the claimant is found entitled to an additional compensation of Rs. 2,25,000/-. She is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent.

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The Appeal is disposed of as found above.

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A.K.BASHEER, JUDGE

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P.Q.BARKATH ALI, JUDGE

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sv.

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MACA.No.603/2004 6

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MACA.No.603/2004 7

Shaniba v. S.Mohanan

Case brief

What is this about?

What did the court decide?

Shaniba v. S.Mohanan

Case brief

What is this about?

What did the court decide?

What the court decided

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