Allowed

Vinitha @ Vineetha v. Smithesh

Kerala HC24 May 2013MACA/2308/2010

Case brief

AI extract

What is this about?

The High Court allowed this motor accident claims appeal to modify a Tribunal award. The court increased compensation for pain and suffering and other heads to ₹15,800 from the awarded ₹10,000, recognizing the petitioner as a minor. The insurance company was directed to deposit the additional amount.

What did the court decide?

Modifying the Tribunal award to grant additional compensation of ₹5,800 with 8% interest, totaling ₹15,800.

Vinitha @ Vineetha Vs Smithesh — Motor Accident Claims | Kerala HC (2013)

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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 V.K.MOHANAN

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FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935

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MACA.No. 2308 of 2010 (C)

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AGAINST THE ORDER/JUDGMENT IN OP.(MV).728/2007 of M.A.C.T OTTAPALAM DATED 15-07-2009

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APPELLANT:PETITIONER:

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VINITHA @ VINEETHA (MINOR), D/O.SUBRAMANYAN, THEKKEPUNNOKKIL HOUSE, P.O.URAKAM, THRISSUR,

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REP.BY HER FATHER SUBRHMANYAN, 40 YEARS, S/O.N.P.BALAKRISHNAN NAIR.

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BY ADV. SRI.SHEJI P.ABRAHAM

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RESPONDENTS:

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SMITHESH, S/O.THANKAPPAN, PARAMEL HOUSE, THALIYAKONAM, MADAYIKONAM VILLAGE, THRISSUR (DRIVER OF KL 7 H 3636 BUS).

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SICILY DEVASSIKUTTY, UKKEN HOUSE, THUMBUR, THRISSUR, (OWNER OF KL 7 H 3636 BUS).

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NATIONAL INSURANCE CO. LTD., MAIN ROAD, IRINJALAKUDA, THRISSUR, POLICY No.570701/31/05/6300008790 VALID FROM 22-01-06 TO 21/02/2007.

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R3 BY ADV. SRI.LAL GEORGE - SC

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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M.A.C.A.No.2308 of 2010

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Dated this the 24^th day of May, 2013

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JUDGMENT

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The appellant, who is the petitioner in O.P. (M.V.)No.728 of 2007 of the Motor Accidents Claims Tribunal, Ottapalam preferred this appeal as he is dissatisfied with the compensation fixed and awarded by the Tribunal.

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According to the petitioner, when she was walking through the Thrissur-Kodungalloor Road from North-South and when she reached the accident spot, a vehicle bearing Registration No.KL-7H-3636 driven by R1 and owned by R2 knocked down the petitioner and consequently she sustained injuries and hence she was taken to Metropolitan Hospital, Thrissur, where she was admitted and underwent treatment as an impatient for few days. According to the petitioner, the accident had taken place due to rash and negligent driving of R1 and

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M.A.C.A.No.2308 of 2010

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therefore R2 is absolutely liable to compensate the petitioner and 3^rd respondent, who is the insurance company, is liable to indemnify the petitioner and thus the petitioner demanded a total compensation of `1,00,000/-.

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During the trial of the case, though no witness was examined from the side of the petitioner, Exts.A1 to

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A7 were marked. No evidence, either oral or documentary, were produced from the side of the respondents. The learned Tribunal finally came into the conclusion that the petitioner is entitled to recover and realise a total sum of `10,000/- with 8% interest per annum from R1 to R3 jointly and severally and accordingly R1 to R3 are directed to pay the compensation from the date of the award. It is the above award on the ground of its inadequacy that is challenged in this Court by the petitioner/appellant.

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Heard the learned counsel for the appellant and the learned counsel for the respondent/the insurance company.

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M.A.C.A.No.2308 of 2010

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Having regard to the facts and circumstances

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involved in the case and in the light of the arguments advanced, it can be safely concluded that the petitioner met with an accident on 08/12/2006 at 8.45 a.m. while the petitioner was walking through the ThrissurKodungalloor Road and it was R1 who drove the vehicle bearing registration No.KL-7H/3636 at the relevant time. It is also beyond dispute that R2 is the owner of the vehicle and R3 is the insurer of the said vehicle. In the light of the above facts and circumstances, which are beyond dispute, the only question remained to be considered is whether the compensation awarded by the Tribunal requires any modification. Admittedly at the time of the accident the petitioner was only 8 years old, who is a minor girl. After the incident the petitioner was removed to Metropolitan Hospital, Thrissur, where she had undergone treatment as an impatient. Ext.A2 is the wound certificate with respect to the injuries sustained by the petitioner. As per Ext.A2, it is noted that she had pain and restrictions of movements of left shoulder.

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M.A.C.A.No.2308 of 2010

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Ext.A6 is the discharge summary card issued from the said hospital, which shows that the petitioner was admitted there on 08/12/2006 and discharged on 12/12/2006. From the description that contained in paragraph 8 of the award, it is clear that the petitioner has not sustained any fracture injury, but the injury noted is soft tissue trauma, left shoulder and in the hospital, she was managed conservatively by analgesics and I.C. dressing. Ext.A7 series are medical bills covering a total sum of 4,712/-. It includes the expenses incurred by the petitioner for CT scan and X-ray. The Tribunal awarded a consolidated amount of 10,000/- for pain and suffering, transportation expenses, loss of amenities, damage to clothes, bystander's expenses, medical expenses, etc. No separate amount was awarded under each of the head.

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The learned counsel for the appellant submitted that the above approach of the court below is incorrect. On the other hand, the learned counsel for the 3^rd respondent/insurance company submitted that the

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M.A.C.A.No.2308 of 2010

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amount fixed by the Tribunal is reasonable one. No modification is warranted, since there is no notable injuries sustained by the petitioner and especially when there is no fracture.

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I have carefully considered the arguments advanced by the learned counsel for the appellant and the respondent.

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Even though there is no fracture or serious injuries, the petitioner sustained injury that is noted as soft tissue trauma, left shoulder. In this juncture, it is relevant to note that the petitioner is not a major but only a tender age of only 8 years at the time of the accident and therefore the injury had likely to cause severe pain. The petitioner being tender aged girl was subjected to severe sufferings and tolerance and therefore, according to me, it was incumbent upon the Tribunal to fix the compensation under each count. Thus, according to me, the appellant is entitled to get a sum of `7,500/- towards pain and suffering. The place of accident was at Kodungalloor and thus she was removed to Metropolitan

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M.A.C.A.No.2308 of 2010

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Hospital, Thrissur and therefore, according to me, a total sum of 1,000/- has to be granted as transportation expenses. Considering the nature of injuries sustained by the petitioner, according to me, a sum of 1,000/- can be given as loss of amenities. A sum of 500/- has to be given as damage to clothes. The petitioner was treated as inpatient in the hospital for four days. Therefore, a total sum of 800/- can be fixed as bystanders' expense. The medical expense incurred by the petitioner for the treatment including the expense spent for X-ray and CTscan will come to about 4,712/- that can be fixed as 5,000/-. Thus, the appellant is entitled to get a total sum of 15,800/-. But the court awarded only a sum of 10,000/-. Therefore, the appellant is entitled to get an additional compensation of `5,800/- with 8% interest.

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In the result, this appeal is allowed modifying the award dated 15/07/2009 in O.P.(M.V.)No.728 of 2007 on the file of the Motor Accidents Claims Tribunal, Ottapalam, granting an additional compensation of `5,800/- with 8% interest from the date of claim petition

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M.A.C.A.No.2308 of 2010

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till the same is deposited in the Tribunal. The 3^rd respondent is directed to deposit the above additional amount with interest within two months from the date of the receipt of a copy of this judgment.

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V.K.MOHANAN, JUDGE

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skj

Vinitha @ Vineetha v. Smithesh

Case brief

What is this about?

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Vinitha @ Vineetha v. Smithesh

Case brief

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