Allowed

Vishnu S/O.Rajan v. Mohammedali

Kerala HC9 Mar 2012MACA/864/2005

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against a Motor Accidents Claims Tribunal award. The Court enhanced compensation for a minor child victim to cover periodical stump revision surgeries until skeletal maturity and added amounts for future pain and suffering, correcting a clerical error in the total sum.

What did the court decide?

The appeal was allowed; the Tribunal award modified to include an additional sum of Rs.1,11,800 (including Rs.1 lakh for future treatment and Rs.10,000 for pain and suffering, plus correction of cleri

Vishnu S/O.Rajan Vs Mohammedali — Medical Negligence | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

¶4

FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933

¶5

MACA.No. 864 of 2005 ( )

¶6

OPMV.967/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM

¶7

APPELLANT/PETITIONER::

¶8

VISHNU, AGED 7 YEARS (MINOR), S/O.RAJAN, POKKANCHERRY HOUSE, VETTAMKULAM POST, MALAPPURAM DISTRICT, REPRESENTED BY LEGAL GUARDIAN AND FATHER MR. RAJAN, S/O. KRISHNAN, RESIDING AT POKKANCHERRY HOUSE, VATTAMKULAM POST, MALAPPURAM DISTRICT.

¶9

BY ADVS. SRI.E.R.VENKATESWARAN, SRI.R.SREEHARI.

¶10

RESPONDENTS/RESPONDENTS:

¶11

1. MOHAMMED ALI, S/O.PAREETH, KUZHIKKANDATHIL HOUSE, KOTHACHIRA, PERINGODU, NAGALASSERY, PALAKKAD DISTRICT (DRIVER OF KL 11 - 6609 LORRY).

¶12

**2. JAMAL, S/O. KUNHUHYDRU, MARIYARATH HOUSE, VAVANOOR, KOOTANADU PALAKKAD DISTRICT., (OWNER OF KL 11-6609 LORRY). (DELETED)

¶13

3. NATIONAL INSURANCE COMPANY LTD., P.B.NO.811, NOOR COMPLEX, MAVOOR ROAD, NEAR ARAYIDATHUPALAM, KOZHIKODE.

¶14

4. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM.

¶15

RESPONDENT NO.2 IS DELETED FROM THE ARRAY OF PARTIES AS PER ORDER DATED 16/02/2012 IN I.A.379/2012 IN MACA.864/2005.

¶16

R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE

¶17

ADV. SRI.P.JACOB MATHEW R4 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC, KSRTC.

¶18

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

rs.

¶20

PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ

¶21

MACA No.864 of 2005

¶22

Dated this the 9^th day of March, 2012

¶23

JUDGMENT

¶24

Ramakrishna Pillai, J

¶25

A four and a half year old boy, who sustained injuries in a road traffic accident on 10/03/2002, approached the Tribunal claiming a compensation of Rs.16 lakhs, against which the learned Tribunal has awarded a sum of Rs.3,21,600/- under various heads.

¶26

Allegedly, while the claimant was travelling by a KSRTC bus, it collided with a lorry which was coming from the opposite direction. The learned Tribunal fixed the primary liability on the driver of the lorry and the third respondent was directed to pay the amount. The appellant has come up in appeal challenging the adequacy of compensation.

¶27

We have heard the learned counsel for the appellant and the learned counsel appearing for the third respondent insurance company. We have also perused the impugned award.

¶28

After the accident, the appellant was admitted to hospital with traumatic crush injury to his right arm with auto amputation of the right

¶29

M.A.C.A No.864 of 2005 -:2:-

¶30

arm on the mid upper arm level. He was hospitalised for about 10 days.

¶31

As per Ext,A13 disability certificate, the appellant is having a

¶32

residual disability of 85%. Accepting the same, the learned Tribunal has awarded a reasonable amount as compensation for permanent disability, which is not at all under challenge.

¶33

The main grievance of the appellant is that though the appellant requires future treatment, the learned Tribunal awarded a sum of Rs.25,000/- only on that count. The learned counsel for the appellant relied on Ext.A11 certificate and the testimony of PW3 who issued the said certificate. It was certified that on 13/05/2003, the appellant had undergone stump revision surgery for protection of bone through the skin. It was further certificate that the appellant has to undergo stump revision surgery periodically till he attains skeletal maturity. As per Ext.A8 certificate issued by PW2, who is the proprietor of a limb fitting centre, was also pressed into service to show that the total cost of future treatment together with fabrication and fitness charges will be Rs.10 lakhs. It is the definite finding in Ext.A11 certificate, which is not under serious challenge, is that the appellant has to undergo stump revision

¶34

M.A.C.A No.864 of 2005 -:3:-

¶35

surgery periodically till he attains skeletal maturity. It is common knowledge that a human being attains skeletal maturity between the age of 18 to 21. As the appellant was aged only 4 ½ years at the time of the accident, he will have to undergo the stump revision surgery upon the amputated abrasions. This, undoubtedly, requires a large amount. As the learned Tribunal has awarded only Rs.25,000/- we are of the view that the sum may not be adequate for the periodical revisional surgeries. It is submitted by the learned counsel for the appellant that the claimant is now 15 years old. Considering all the relevant circumstances, we are of the view that a sum of Rs.1 lakh would be a just and reasonable compensation to the appellant to meet the future stump revision surgeries. Thus, we are awarding an additional sum of Rs.1 lakh towards future treatment.

¶36

We do notice that the learned Tribunal has awarded a sum of Rs.25,000/- as compensation for pain and suffering. Though, it appears to be reasonable, we are awarding an additional sum of Rs.10,000/- on that count taking into the fact that the appellant will have to undergo few more surgeries, which would be painful.

¶37

M.A.C.A No.864 of 2005

¶38

-:4:-

¶39

It was further submitted by the learned counsel for the appellant that there is a clerical mistake in the impugned award . It was pointed out that the total amount that was awarded by the learned Tribunal would come to Rs.3,23,400/- But, by mistake, in the award, it was stated that the appellant is entitled to receive a sum of Rs.3,21,600/-. We accept the said submission and hold that the appellant is entitled to receive a sum of Rs.1,800/- more, as per the original award.

¶40

Thus, in total the appellant is entitled to get an additional sum of Rs.1,11,800/-, over and above what was awarded by the learned Tribunal. The additional amount awarded except the amount awarded for future treatment ( i.e. Rs.1,00,000/-), will carry interest the rate 7.5% per annum.

¶41

In the result the appeal is allowed. The award shall stand modified

¶42

as above.

¶43

sd/- PIUS C. KURIAKOSE

¶44

JUDGE

¶45

sd/-

¶46

A. V. RAMAKRISHNA PILLAI JUDGE

¶47

//TRUE COPY//

¶48

P.A TO JUDGE

¶49

krj

Vishnu S/O.Rajan v. Mohammedali

Case brief

What is this about?

What did the court decide?

Vishnu S/O.Rajan v. Mohammedali

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.v.George Vs State of Kerala

R.Ayyanadar Karthik Vs State of Kerala

Cyriac Joseph Vs State of Kerala

National Insurance Company Limited Vs D.Kunhibi

Unitd India Insurance Co.Ltd Vs Ramla

Rajesh A.N. Vs C.O.Antony