Allowed

Deepthi. Saji v. Binu.v. Jacob

Kerala HC22 Nov 2022MACA/496/2013

Case brief

AI extract

What is this about?

The High Court modified the Motor Accidents Claims Tribunal's award. It rejected claims for loss of earning and loss of marriage prospects but increased compensation for disfigurement, pain and suffering, amenities, and specific expenses like bystander costs.

What did the court decide?

Awarded Rs.35,200 as additional compensation with interest of 7.5% per annum; originals to be paid as directed by Tribunal.

Deepthi. Saji Vs Binu.v. Jacob — Medical Negligence | 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 22ND DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944

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MACA NO. 496 OF 2013

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AGAINST AWARD DATED 20.06.2012 IN O.P(M.V) NO.1332 OF 2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA

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APPELLANT/PETITIONER:

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DEEPTHI SAJI (MINOR),
AGED 14 YEARS,
D/O. SAJI, THANIKUNNEL HOUSE,
EZHAKKARANADU, MANEED VILLAGE, PIRAVOM,
REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN,
BEENA W/O. SAJI, AGED 38 YEARS,
THANIKUNNEL HOUSE, EZHAKKARANADU,
MANEED VILLAGE, PIRAVOM.

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BY ADV
 SRI.SOORAJ T.ELENJICKAL

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RESPONDENTS/RESPONDENTS:

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1BINU.V. JACOB,
S/O YACOB,
VEMBANATTU HOUSE, NECHOOR P.O.,
MANEED, PIRAVOM-686 664.
2SAJI T.S.,
S/O. SCARIA,
THANIKUNNEL HOUSE,
EZHAKARANADU SOUTH, PIRAVOM-686 664.
3THE NATIONAL INSURANCE CO. LTD.
TRIPUNITHURA-682 301.
BY ADVS.
 SRI.K.N.SATHYARAJAN

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 SMT DEEPA GEORGE (STANDING COUNSEL)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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M.A.C.A.No.496 of 2013

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JUDGMENT

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Dated this the 22nd day of November, 2022

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This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Muvattupuzha (for short ‘the Tribunal’) on 20.06.2012 in O.P.(MV)No.1332/2006. The Tribunal has arrived at a sum of Rs.1,24,711/- as the total compensation payable and directed the 3^rd respondent insurer to deposit the same with interest at the rate of 8% per annum from the date of filing of the original petition till the date of realisation alongwith proportionate cost. The award is under challenge for the main reason that the compensation awarded by the Tribunal is inadequate and disproportionate to the actual sufferings of the petitioner.

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The parties to this appeal will hereinafter be referred to as the petitioner and respondent Nos. 1 to 3 in accordance with their status in the Original Petition before the Tribunal.

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It is contended by the learned counsel for the petitioner that the Tribunal failed to award any compensation

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M.A.C.A.No.496 of 2013

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under the head loss of earning. It is further contended that the Tribunal has awarded Rs.12,000/- in lumpsum as compensation for general expenses including expenses for transportation to hospital, damages to clothing and expenses of bystander. It is further contended that compensation was declined under the head future treatment expenses. According to the learned counsel, the minor girl has lost her studies for 24 days in view of the inpatient treatment undergone by her following the motor accident and she is entitled to be compensated on that count. The learned counsel has also pointed out that as compensation towards pain and suffering and loss of amenities and enjoyments in life also the Tribunal has awarded only sums totally inadequate, unjust and unreasonable. The disfiguration and deformity of the petitioner on account of the injuries sustained by her was viewed lightly by the Tribunal and accordingly Rs.5,000/- only was awarded as compensation against the claim raised for Rs.45,000/-. According to him, the Tribunal ought to have considered the reality that the bulging developed on the right foot of the minor girl following the

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M.A.C.A.No.496 of 2013

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injuries sustained in the motor accident will have every adverse impact on her marriage prospects.

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The learned counsel for the 3^rd respondent conceded the sentiments expressed by the learned counsel for the claimant. It was contended that the petitioner being a minor girl, is not entitled to get any compensation under the head loss of earning. It is further contended by the learned counsel that the minor girl was studying only in 3^rd standard, at the relevant time and therefore, loss of attendance for 24 days cannot be taken to have affected her education adversely and therefore the claim of the petitioner for compensation for loss of studies is only liable to be discarded. The learned counsel for the 3^rd respondent has pointed out further that the bulging being on the backside of the right foot, there is no justification in the argument that the marriage prospects would be diminished. According to the learned counsel, compensation stands awarded under each heads being just and reasonable, the impugned award is only to be maintained.

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M.A.C.A.No.496 of 2013

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It is noticed from the impugned award that the

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Tribunal failed to award any sum as compensation under the head loss of earnings. The injured being a student at the relevant time of the motor accident, compensation is not liable to be granted under the head loss of earning. Claim was raised for award of compensation for future treatment expenses. But, medical bills having not been furnished to establish future treatment, compensation has been rightly declined by the Tribunal. The appeal is taken up for consideration after a lapse of ten years from the date of it’s filing and if there is any merit in the contention raised by the learned counsel that the petitioner had continued her treatment and incurred expenses for that, she would have produced medical bills to establish that. Medical bills to establish the treatment continued having not been produced, the claim for compensation for future treatment expenses is only to be discarded and this Court do so.

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Regarding the marriage prospects, this Court is of the opinion that the bulging on the back of the right foot is unlikely to affect the marriage prospects of the minor girl. The

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M.A.C.A.No.496 of 2013

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marriage prospects is likely to be affected on account of loss of beauty of the girl by an ugly scar on the face or deformity of any kind in visible parts of the body. Therefore, compensation claimed under the head loss of marriage prospects is declined.

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This Court is convinced from the photographs produced that some disfiguration is there in view of the bulging on the backside of the right leg . Therefore this Court is inclined to substitute Rs.20,000/- in the place of Rs.5,000/-. Therefore, the petitioner will get Rs.15,000/- as additional compensation under that head.

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As compensation towards transportation expenses, damages to clothing and bystander expenses, a consolidated sum of Rs.12,000/- was awarded by the Tribunal. This Court finds the award of compensation in lumpsum improper and is inclined to calculate compensation separately. It is also noticed

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that compensation was not awarded towards extra nourishment. The petitioner was evidenced from the records as treated inpatient for 24 days. The accident being occurred in the year 2006, this Court finds it reasonable to take Rs.150/-

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M.A.C.A.No.496 of 2013

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per day for the purpose of assessment of compensation for bystander expenses. Therefore, the petitioner will get Rs.3,600/- as compensation towards bystander expenses. As compensation towards damages to clothing, Rs.1,000/- being the sum claimed by the petitioner and reasonable, this Court awards the same. Petitioner had availed treatment firstly from JMP Medical Centre, Piravom and later from Specialists Hospital, Ernakulam. The treatment as inpatient continued for 24 days. Therefore, expenditure of a reasonable amount towards transportation expenses cannot be ignored. This Court finds it reasonable in the context to award Rs.4,000/- as compensation towards transportation expenses. Rs.3,600/- is also awarded as compensation towards extra nourishment. Thus Rs.12,200/- (Rs.3,600/- + Rs.1,000/- + Rs.4,000/- + Rs.3,600/-) is arrived at as compensation under the above heads in total. The materials marked in evidence as Exts.A5 and A6 would evidence that the petitioner had sustained tissue loss over lateral aspect of right heal exposing calcaneum. She had also sustained contused abrasion, 4x3 cm on right heel. The

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M.A.C.A.No.496 of 2013

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wound was cleaned and dressed. She was referred to Specialists Hospital, Ernakulam for Plastic Surgery Consultation. Ext.A6 is the Wound cum Discharge Certificate issued from Specialists Hospital, Ernakulam whereto the petitioner was transported from JMP Medical Centre, Piravom and there X-ray was taken. Bony injury was not detected in X-ray. She was treated there as inpatient from 19.05.2006 to 12.06.2006 for loss of soft tissue from the right heel. There is no remark of the Doctor in Ext.A6 advising to continue the treatment further. Ext.A7 is the discharge summary issued from Specialists Hospital, Ernakulm. As per Ext.A7 at the time of discharge the petitioner was advised to take rest by keeping the foot elevated. Coconut oil was also advised to be applied over the grafting site and donor site after bath. She was also advised to continue medication for 6 weeks and to review after one week. Therefore, as per the medical documents produced, at the time of discharge from the hospital, there was only an advice to review after one week. Taking those aspects into consideration, this Court finds that Rs.15,000/- stands

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M.A.C.A.No.496 of 2013

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awarded as compensation towards pain and suffering is inadequate. Since the minor girl had sustained an injury with tissue loss and treated as inpatient for 24 days, this Court awards Rs.30,000/- under that head. Thus, the petitioner will get Rs.15,000/- as additional compensation. As compensation towards loss of amenities and enjoyments in life, the Tribunal has awarded Rs.10,000/- and this Court modifies it to Rs.15,000/-. Therefore, the petitioner will get Rs.5,000/- as additional compensation. Rs.12,000/- stands awarded in lumpsum towards transportation expenses, bystander expenses and damages to clothing is liable to be adjusted in Rs.12,200/arrived at as total compensation towards extra nourishment, bystander expenses, damages to clothing and transportation expenses. Therefore, the petitioner will get Rs.200/(Rs.12,200/- - Rs.12,000/-) as additional compensation.

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Thus Rs.35,200/- (Rupees Thirty five thousand two hundred only) (Rs.15,000/- + Rs.200/- + Rs.15,000/- + Rs.5,000/-) is awarded at as additional compensation. Said amount will carry interest at the rate of 7.5% per annum from

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M.A.C.A.No.496 of 2013

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the date of filing of the original petition till the date of realisation. The 3^rd respondent shall pay the additional sum awarded with interest fixed as above as well as the compensation stands originally awarded by the Tribunal with interest fixed on it (if not paid), in accordance with the direction issued by this Court in Circular No.03/2019 dated 06.09.2019 within a period of two months from the date on which a certified copy of this judgment is received.

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MACA stands allowed accordingly.

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Sd/-

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MARY JOSEPH JUDGE

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MJL

Deepthi. Saji v. Binu.v. Jacob

Case brief

What is this about?

What did the court decide?

Deepthi. Saji v. Binu.v. Jacob

Case brief

What is this about?

What did the court decide?

What the court decided

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