Partly allowed

Nisha v. C.a.Davis and Another

Kerala HC10 Nov 2014MACA/1766/2007

Case brief

AI extract

What is this about?

This appeal by a minor injured in a road traffic accident was partly allowed. The court enhanced the compensation award from the Tribunal to Rs. 1,70,000/- considering permanent disability, loss of amenities, pain and sufferings, and medical expenses.

What did the court decide?

Claim allowed in part with total compensation enhanced to `1,70,000/- carrying interest at 9% per annum; KSRTC directed to pay within two months.

Nisha Vs C.a.Davis and Another — Motor Accident Claims | Kerala HC (2014)

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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 THOTTATHIL B.RADHAKRISHNAN

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THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH

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MONDAY, THE 10TH DAY OF NOVEMBER 2014/19TH KARTHIKA, 1936

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MACA.No. 1766 of 2007

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AGAINST THE AWARD IN OP(MV) 378/2001 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 30-03-2007

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APPELLANT/PETITIONER:

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NISHA(MINOR), AGED 15 YEARS, D/O SELVARAJAN, MALLANKULAMBU, MUTHALAMADA PALAKKAD DISTRICT, REP. BY HER MOTHER AS NEXT FRIEND SUDHA SELVARAJAN, W/O SELVARAJAN, MALLANKULAMBU MUTHALAMADA, PALAKKAD DISTRICT.

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BY ADVS.SRI.P.V.BABY

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SRI.A.N.SANTHOSH

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RESPONDENTS/RESPONDENTS 1 AND 2:

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C.A.DAVIS S/O. ANTHONY (DELETED) CHALISSERRY HOUSE, PERINGOTTUKARA P.O. THRISSUR DISTRICT.

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THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM.

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RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 7.7.14 IN I.A. No. 1884/14 in MACA 1766/2007.

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R2 BY ADV. SRI.JOY GEORGE, SC, K.S.R.T.C.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOTTATHIL B. RADHAKRISHNAN &

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BABU MATHEW P. JOSEPH, JJ. =========================== M.A.C.A.No. 1766 of 2007

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===========================

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Dated this the 10^th day of November, 2014

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JUDGMENT

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Thottathil B. Radhakrishnan, J.

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This appeal is by the claimant challenging the quantum of compensation granted in a claim petition filed on her behalf following a road traffic accident in which she suffered injuries on 1.2.2000.

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We have heard the learned counsel for the appellant and the learned counsel for the respondent-KSRTC.

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The appellant, a girl child, then aged 9 years suffered crush injury on her left hand leading to amputation of the distal phalanx of left little finger and the distal phalanx of the left ring finger. Taking into consideration the fact that she thus lost one phalanx each from her left little and ring fingers, the percentage of permanent disability that

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MACA 1766/2007 2

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affects her on that count can be taken as 10 following Schedule I Part II of the Workmen's Compensation Act, 1923. Taking into consideration the age of the victim and the prospects in life which would have come to her, it will be reasonable to fix disability compensation as `1,00,000/following the judgment of the Honourable Supreme Court of India in Master Mallikarjun v. Divisional Manager, National Insurance Company Ltd. & Anr. [2013(3)KLJ

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815].

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The appellant also suffered crush injury and fracture of the terminal phalanx of the ring and middle fingers. She had also a deep lacerated injury on her forehead. Taking these injuries along with the aforesaid injuries to the left little and ring fingers, we have to take it that she underwent enormous pain and sufferings and mental and physical shock as well as hardship during the period of her treatment following the accident. She was hospitalised for nine days. We hold that she is entitled to `25,000/- as compensation

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MACA 1766/2007

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towards pain and sufferings.

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The future amenities of a girl child of the age of 9 years can be easily visualized. Permanent disability to at least two of her fingers would adversely impact her prospects in life including by way of disfigurement. Hence, we are of the view that loss of amenities in life on account of the permanent disability and inconvenience that would follow along with it should carry a compensation of `40,000/-.

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We see that no amount at all was granted by the Tribunal for medical expenses. PW1, appellant's mother had deposed that she was also injured. However, for want of documentary evidence of her injuries, the mother was refused compensation. But, we see that there is a ring of truth in the testimony of PW1. Obviously, she could not have appropriately assisted her daughter as a bystander. Taking all the relevant facts and circumstances, we are of the view that the appellant is entitled to an amount of `5,000/- towards compensation for medical expenses,

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MACA 1766/2007 4

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bystander expenses and extra nourishment all taken together. With the aforesaid discussions, an amount of `1,70,000/- as compensation to the appellant is her legitimate due. That is just and reasonable compensation that she is entitled to.

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In the result, this appeal is allowed in part awarding an amount of `1,70,000/- (Rupees one lakh and seventy thousand only) as the total compensation due to the appellant. The amount enhanced hereby will carry interest at the rate of 9% per annum from the date of the claim petition till realization. The KSRTC is directed to satisfy this award and make deposit within a period of two months from

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today.

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Sd/-

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THOTTATHIL B. RADHAKRISHNAN JUDGE

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Sd/- BABU MATHEW P. JOSEPH JUDGE

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ks.

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True copy P.S. TO JUDGE