Allowed

Prejith Kumar v. P.N.Narayanan Namboothiri

Kerala HC18 Oct 2022MACA/2663/2012

Case brief

AI extract

What is this about?

This Motor Accident Claims Appeal set aside the compensation award of Rs.96,147/- made by the Motor Accident Claims Tribunal. The High Court awarded a consolidated sum of Rs.3,01,900/- under non-pecuniary and specific head of compensation heads with interest for the benefit of a 16-year-old boy with 25% disability.

What did the court decide?

Awarded additional compensation of Rs.3,01,900/- with interest at 7.5% per annum exempt for 287 days, to be deposited by the respondent insurer.

Prejith Kumar Vs P.N.Narayanan Namboothiri — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 18TH DAY OF OCTOBER 2022 / 26TH ASWINA, 1944

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MACA NO. 2663 OF 2012

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AGAINST THE ORDER/JUDGMENT IN OPMV 510/2006 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA DATED 25.08.2011

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APPELLANT/PETITIONER:

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PREJITH KUMAR

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S/O PRAKASHAN, KAINIKIRIMADOM VEEDU, WARD NO.III,
AMBALAPUZHA SOUTH PANCHAYATH, ALAPPUZHA DISTRICT.
BY ADVS.SRI.S.SANAL KUMAR

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 SMT.BHAVANA VELAYUDHAN
 SMT.T.J.SEEMA

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RESPONDENTS/RESPONDENTS:

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1 P.N.NARAYANAN NAMBOOTHIRI S/O P.K. NARAYANAN NAMBOOTHIRI, ‘AISWARYA’, WARD NO.11, THAKAZHY PANCHAYATH, ALAPPUZHA-688 562.

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2 NATIONAL INSURANCE COMPANY LIMITED ALAPPUZHA BRANCH, ALAPPUZHA-688 001, REPRESENTED BY ITS MANAGER.

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BY ADVS.SMT.P.LISSY JOSE.

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 SRI.S.SANTHOSH KUMAR

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SRI.S.VINODKUMAR

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OTHER PRESENT:

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R2 BY SC, SMT.SARAH SALVY

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR HEARING ON 18.10.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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MACA No. 2663 of 2012

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JUDGMENT

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Dated this the 18^th day of October, 2022

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This appeal is filed challenging an award passed by Motor Accident Claims Tribunal, Alappuzha on 25.08.2011 in OP(MV) No.510/2006. Injured petitioner before the Tribunal is the appellant herein. The quantum of compensation awarded is challenged by him for the reason that it is unjust, unreasonable and inadequate. It is contended by the learned counsel for the appellant that the Tribunal has awarded a sum of Rs.96,147/- as compensation in favour of the petitioner and directed the 2^nd respondent insurer to deposit it before the Tribunal with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation.

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According to the learned counsel, Tribunal has not followed the Schedule prepared by the Apex Court in Master Mallikarjun v. Divisional Manager, The National Insurance Co. Ltd.

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And another [2013 KHC 4670] wherein for a child having permanent whole body disability upto 10% was directed to be given a sum of Rs.1,00,000/-, above 10% and upto 30%, Rs.3,00,000/-, upto 60%, Rs.4,00,000/-, upto 90%, Rs.5,00,000/- and above 90% Rs.6,00,000/- as compensation.

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MACA No. 2663 of 2012

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-:3:-

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The court has also held that the amount as above have to be awarded unless exceptional circumstances are there to take a different yardstick. According to the learned counsel as per the direction in Master Mallikarjun (supra), the petitioner who was aged only 16 years and had sustained permanent whole body disability of 25% is entitled to get a lumpsum amount of Rs.3,00,000/- as compensation. The Apex Court has also held that apart from the compensation directed to be paid as above, the child would also be entitled to get actual expenses incurred for the treatment already undergone or to be undergone, transportation and attendant etc.

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The petitioner in the case on hand was aged 16 years and had sustained fracture of femur of his left leg in the motor accident apart from other injuries like abrasions of both clavicle, injuries to left palm and deformity all over the body. It is established from Ext.A5, the laboratory reports and Ext.A6, the discharge card that the petitioner was treated as inpatient for 23 days. A certificate of disability was issued by an Orthopedic Surgeon after examining the petitioner and certifying his permanent whole body disability as 25%. The petitioner had also appeared before the court personally and the Tribunal had the

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MACA No. 2663 of 2012

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opportunity to see him. The Tribunal had noticed shortening in the left leg than the right one. For the reason, the Tribunal had taken 25% as the permanent whole body disability of the petitioner. The Tribunal had assessed the compensation payable, but not in accordance with the direction in Master Mallikarjun (supra) relied on by the learned counsel for the appellant. Tribunal had opted to award compensation under different non-pecuniary heads. The observation made by the Apex Court in the context of Master Mallikarjun (supra) being relevant is extracted hereunder :

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“The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation etc.”

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Therefore, the petitioner, a boy aged 16 years with permanent whole-body disability of 25% is entitled to get a lumpsum consolidated amount of Rs.3,00,000/- as compensation under the non-pecuniary heads by him for treatment,

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MACA No. 2663 of 2012

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transportation and attendant which would come within the category of pecuniary damages. Therefore, Rs.3,00,000/- is awarded as compensation under all non-pecuniary heads of compensation.

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Rs.5,747/- stands proved from Ext.A8 series as spent by the petitioner for his treatment and the Tribunal has awarded the said sum as compensation towards treatment expenses. Rs.2,300/- stands awarded by the Tribunal towards extra nourishment. The said sum being unreasonable, this Court is inclined to award Rs.3,000/- and therefore the petitioner will get Rs.700/- as additional compensation. Under the head transportation expenses, the Tribunal has awarded a sum of Rs.300/- against the claim of the petitioner for Rs.500/-. It is noticed that the petitioner was residing at Ambalappuzha South Panchayat and the treatment was availed from Medical College Hospital, Alappuzha. He was also treated as inpatient for 23 days. Therefore, the petitioner must have incurred expenses for transportation and this Court is inclined to award Rs.1,500/under that head. The Tribunal has awarded Rs.300/- and therefore the petitioner will get Rs.1,200/- as additional compensation. Apart from the above, the petitioner is not

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MACA No. 2663 of 2012

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entitled to get compensation under any other heads. In the reassessment as above, Rs.3,01,900/- (Rupees Three lakhs one thousand nine hundred only) (3,00,000+700+1,200) is payable as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation.

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There was a delay of 287 days in filing the appeal on hand. The learned counsel seeks for exoneration from paying interest for the period. Vide order passed by this Court on 20.12.2021 in C.M. Appl. No.1 of 2012 the 2^nd respondent stands exonerated from paying interest for the above period of delay. Therefore, the 2^nd respondent shall deposit the amount found payable as additional compensation with interest fixed as above except for 287 days, within a period of two months from the date

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on which a certified copy of this judgment is received.

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M.A.C.A stands allowed accordingly.

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Sd/-

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MARY JOSEPH,

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ttb

Prejith Kumar v. P.N.Narayanan Namboothiri

Case brief

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Prejith Kumar v. P.N.Narayanan Namboothiri

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