Allowed

Bhavees Bhargavan v. K.Rasheed

Kerala HC9 Oct 2018MACA/1961/2006

Case brief

AI extract

What is this about?

This is an appeal against a Motor Accident Claims Tribunal award totaling ₹25,500 for a child injured in a road accident. The court enhanced the disability compensation component to ₹100,000, directing the insurer to deposit the balance with interest, while restructuring other heads of claim.

What did the court decide?

Disability compensation enhanced to ₹100,000; balance of ₹93,250 deposited by insurer with 7.5% interest. Other heads reclassified.

Bhavees Bhargavan Vs K.Rasheed — Money Laundering | Kerala HC (2018)

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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 P.R.RAMACHANDRA MENON

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TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940

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MACA.No. 1961 of 2006

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AGAINST THE AWARD IN OPMV 1024/2000 of M.A.C.T., THALASSERY DATED 01-10-2005

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APPELLANT/S:

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BHAVEES BHARGAVAN, AGED 19 YEARS, GURIKKAL, THOTTILIL HOUSE,, P.O.PARAL, CHOKLI, TELLICHERRY VIA.

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BY ADV. SRI.C.P.PEETHAMBARAN

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RESPONDENT/S:

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1 K.RASHEED, S/O.P.A.RAZAK, KOOKKAT HOUSE, P.O.KERIVELLUR, PAYYANNUR.

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2 P.P.PRAMOD, S/O.SUKUMARAN, NEW VILLA, PANNYANNUR, PANNYANNUR P.O.

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3 THE UNITED INDIA INSURANCE CO.LTD. KANNUR.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

M.A.C.A.No.1961/2006

JUDGMENT

The total compensation of 25,500/- awarded by the₹

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Tribunal with interest in respect of the serious injuries sustained by the appellant/claimant, who was of 11 year of age at the time of accident, with certified disability of 4% is sought to be enhanced in this appeal.

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The appellant, a pedestrian, was knocked down by a car insured by the 3^rd respondent Insurance Company on 17.04.1999, causing injuries, which led to the claim petition. The claim was contested mainly by the Insurance Company on quantum, while the policy was admitted. Evidence was tendered by the claimant as PW1, besides examining the Doctor who issued the disability certificate as PW2. Based on the evidence, the Tribunal found that the accident was solely because of the negligence on the part of the driver of the car.

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As observed by the Tribunal in paragraph No.9 of

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the award, the injuries sustained and the consequences resulted, are as follows:

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“The injuries sustained to the petitioner noted in its as fracture to

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M.A.C.A.No.1961/2006

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right femur. Furhter, it is noted that supracondylar operative reduction done under general anasthesia. The injury is grievous nature. Ext.A4(b) is pertaining the admission of the petitioner from 2-6-99 to 20-6-99. He was admitted in the hospital with ulcer on right thigh and also for skin grafting. According to PW1, after discharge he continued the treatment for 1½ years. Again he was admitted in the hospital from 12.05.2005 to 19.05.2005 for the removal of the implant. Ext.A5 is the discharge card pertaining to this admission. It is noted that the screws implanted on the leg of the petitioner has been removed under general anaesthesia. There were reviews to him on 22-5-00, 25-5-00, 8- 5-00 and 20.1.01. There were two reviews to him on these days. Ext.A7 is a Disability Certificate issued by Dr.Vijumon, orthopedic surgeon, General Hospital, Thalassery. The doctor was also examined as PW2. It is noted that in Ext.A7 that there is one inch of shortening of the right leg of the petitioner. So, the doctor assessed 4% permanent whole body disability to the petitioner.”

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Amounts awarded by the Tribunal under different

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heads, as given in paragraph No.11, are extracted below:

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1.Transportation expenses ₹1,000.00 including reviews.

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2.Medical expenses ₹2,720.00 3.Bystander expenses ₹5,500.00 4.Extra nourishment ₹1,500.00

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M.A.C.A.No.1961/2006

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5.Pain and sufferings ₹8,000.00 6.Amount of earning capacity ₹6,750.00 (1250x12x15x3%) TOTAL ₹25,470.00 Rounded to ₹25,500.00

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The learned counsel for the appellant points out

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that there was absolutely no reason to have the certified

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whole body disability of 4% to be reduced to 3% by the

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Tribunal, more so when the doctor was examined as PW2 and

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there was a clear admission as to the shortening of the

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leg by one inch. The learned counsel submits that, by

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virtue of the law declared by the Apex Court in Mallikarjun v. Divisional Manager, National Insurance Company Ltd and Another [(2014)14 SCC 396], permanant disability up to 10% has to be compensated by granting a disability compensation of ₹1,00,000/-, where the Tribunal has awarded only a sum of ₹6,750/- . This Court

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finds considerable force in the said submission and holds

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that the appellant is entitled to get a sum of

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₹1,00,000/- as mentioned above. After giving credit to the sum of ₹6750/- awarded by the Tribunal, the balance

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payable under this head comes to ₹93,250/-, . It is

awarded accordingly.

M.A.C.A.No.1961/2006

However, the above figure is inclusive of

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various heads as discussed in paragraph 12 of the verdict passed by the Supreme Court as extracted below :

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"12. Though it is difficult to have an acurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc.should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs ; up to 60%, Rs.4 lakhs ; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick."

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As it stands so, amounts awarded by the Tribunal

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under some of the heads, prima facie, may appear to be overlapping. No amount has been awarded by the Tribunal towards the 'loss of income'. As such, the amounts awarded by the Tribunal towards pain and suffering and loss of earning capacity will stand reclassified as compensation for loss of income of the parents. So, no deduction is made in this regard. The additional

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M.A.C.A.No.1961/2006

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compensation as ordered above shall be deposited by the

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3^rd respondent insurer with interest @7.5% per annum before the Tribunal within one month from the date of

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receipt of a copy of this judgment.

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Appeal stands disposed of.

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Sd/-

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P.R.RAMACHANDRA MENON

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JUDGE

Bhavees Bhargavan v. K.Rasheed

Case brief

What is this about?

What did the court decide?

Bhavees Bhargavan v. K.Rasheed

Case brief

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