Allowed

Sarath Sasi (Minor) v. Sibi.M.J

Kerala HC24 Nov 2023MACA/229/2023

Case brief

AI extract

What is this about?

The High Court allowed the Motor Accidents Claims Appeal against an award of the Tribunal. The Court rejected future treatment expenses due to lack of proof of execution over ten years. It enhanced compensation for transportation, extra nourishment, bystander expenses, pain and suffering, and loss of amenities/enjoyments. Disfigurement was disallowed as per evidence. Total additional compensation

What did the court decide?

Additional compensation of Rs. 24,500 with interest at 7.5% per annum to be paid by the insurer within two months.

Sarath Sasi (Minor) Vs Sibi.M.J — Medical Negligence | Kerala HC (2023)

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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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FRIDAY, THE 24TH DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945

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MACA NO. 229 OF 2023

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AGAINST THE AWARD IN OPMV 103/2014 OF MOTOR ACCIDENT CLAIMS

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TRIBUNAL, PERUMBAVOOR DATED 04/11/2017

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APPELLANT/PETITIONER:

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SARATH SASI (MINOR)
AGED 18 YEARS
REPRESENTED BY MOTHER AND NATURAL GUARDIAN MS.
BINDU, PALLIMALI HOUSE, VENGOOR VILLAGE, VENGOOR P.O.,
PERUMBAVOOR, ERNAKULAM-683 546.

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BY ADVS.STEFFY V.J.
 SANJAY THAMPI

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RESPONDENTS/RESPONDENTS:

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1SIBI.M.J
S/O. JOSEPH, 12/390, MULACKAL HOUSE, NEDUMKANDAM P.O.,
IDUKKI DISTRICT, IDUKKI-685 553.

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2RAJAN
AGED 36 YEARS
S/O.SIVARAMAN, MANJAMKUZHI HOUSE, ASAMANNOR P.O.,
ODAKKALI, ERNAKULAM-683 549.

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3THE ORIENTAL INSURANCE CO. LTD.,
VALLAPRAMBIL SHOPPING COMPLEX, FIRST FLOOR, PRIVATE
BUS STAND ROAD, ADIMALI, IDUKKI-685 561. REPRESENTED
BY ITS MANAGER.

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BY ADVS.GEORGE JOSEPH
 TITUS MANI VETTOM

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 24.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A. No. 229 of 2013

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-:2:-

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MARY JOSEPH, J.

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- - - - M.A.C.A. No. 229 of 2013

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Dated this the 24^th day of November, 2023

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JUDGMENT

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This appeal is originated from an award passed on 04.11.2017 by Motor Accidents Claims Tribunal, Perumbavoor (for short ‘the Tribunal’) in OP(MV) No.103/2014. Appellant is the petitioner before the Tribunal who is a minor child represented by her mother and natural guardian.

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

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The Tribunal has passed an award for a sum of `1,38,894/- as compensation in favour of the petitioner and directed the insurer of the offending vehicle who was the 3^rd respondent in the Original Petition to deposit the same with interest at the rate of 8% per annum from the date of filing of

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the Original Petition till the date of realisation. The amount was also directed to be deposited within one month from the date of the award.

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M.A.C.A. No. 229 of 2013

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-:3:-

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The grievance of the petitioner was that the Tribunal failed to award future treatment expenses in his favour. It was contended further that compensation ought to have been awarded by the Tribunal towards loss of earning, though a claim was not raised in the Original Petition. The argument further raised was that compensation stood awarded by the Tribunal towards pain and suffering is inadequate and therefore modification is required. It was also pointed out that though `50,000/- was claimed as compensation for disfigurement in view of the serious facial injury sustained by the child, the Tribunal failed to award compensation for that and also for loss of marriage prospects allegedly caused due to that. Yet another contention raised was that the compensation stood awarded by the Tribunal towards Extra Nourishment and Medical Expenses are also inadequate and modification is warranted.

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A common award was passed in the Original Petition on hand and other petitions filed by some other injured in the very same motor accident. Ext.A5 is the wound certificate of the minor child issued from Sanjo Hospital, and it is reported that the minor child has sustained lacerated wound with split lip, right side of face, lacerated wound left cheek superficial and fracture

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M.A.C.A. No. 229 of 2013

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-:4:-

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of maxilla and mandible right. It is further revealed from Ext.A5 that the petitioner was discharged from the hospital on the very same day. Another wound certificate was found prepared at MOSC Medical College Hospital, Kolenchery and it was marked in evidence as Ext.A6. It was reported that the petitioner had multiple abrasions on the right shoulder, hand and chest, abrasion on left side of chest, abrasion on both knees, lacerated wound 3 x 0.5 cm above right eye, lacerated wound 3 x 1 cm on the right upper lip and lacerated wound 2 x 0.5 cm on left cheek. Ext.A8 is the discharge summary issued from MOSC Medical College Hospital, Kolenchery and there fractures of bilateral maxilla, symphysis of mandible and alveolus were reported. Petitioner was treated as inpatient for 12 days, during which period he was subjected to open reduction and internal fixation.

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From Ext.A7, it is revealed that the petitioner was subjected to another surgery for removal of implants on 03.07.2013 at MOSC Medical College Hospital, Kolenchery. Medical bills were also marked in evidence, which show an expenditure of 80,994/-. One among the medical bills, being an ambulance bill, was discarded from consideration and thus 80,394/- was awarded as treatment expenses. Ext.A15 is

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M.A.C.A. No. 229 of 2013

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-:5:-

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produced by the petitioner to establish that future treatment is also suggested for him. It is reported there that the petitioner may have to undergo Root Canal treatment, crowning, prosthesis, CBCT for implants and orthodontic treatment of malaligned teeth in furture. The document was marked by the Tribunal subject to proof, for the failure of the petitioner to examine the doctor who issued it. Though it is revealed from Ext.A15 that the document was issued in the year 2013, evenafter ten years when the appeal on hand was considered, the petitioner failed to produce any document to establish that treatments suggested were undergone by him. Therefore, it is doubtful whether the petitioner actually was in requirement of the treatment procedures suggested in Ext.A15. If those procedures were actually required, the petitioner would have been subjected to those during the interregnum period of ten years. Since no document is forthcoming with regard to the treatment undergone by the petitioner during that period, this Court is declined to consider the prayer of the petitioner for future treatment expenses and to award compensation under that head. Moreover, it is not discerned from Ext.A15 that treatment procedures suggested have to be undergone by the

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M.A.C.A. No. 229 of 2013

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-:6:-

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petitioner mandatorily in view of the words used therein, ‘may require’.

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It is found from the impugned award that loss of earning was not claimed and was not awarded. The victim of the motor accident being a minor child, it is unlikely for him to suffer loss of income on account of the treatment undergone by him following the motor accident. 2,500/- stood awarded as compensation towards transportation expenses being inadequate is enhanced to 4,000/- and thus the petitioner will get 1,500/- as additional compensation. Despite the factum stood established by evidence that the petitioner had sustained serious injuries in the motor accident, the Tribunal failed to award reasonable compensation towards Extra Nourishment, bystander expenses, pain and suffering and loss of amenities and enjoyments in life. Therefore, compensation payable towards Extra Nourishment and bystander expenses are enhanced to 4,000/- each and thus the petitioner will get 2,500/- and 500/- respectively as additional compensation. The compensation stood awarded towards pain and suffering and loss of amenities and enjoyments in life also being inadequate and disproportionate, `10,000/- each is also awarded as compensation in addition, under those heads.

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M.A.C.A. No. 229 of 2013

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Disfigurement having not been established, compensation is declined under that head.

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In the above manner of calculation afresh, the petitioner will get 24,500/- (Rupees twenty four thousand five hundred only) (1,500/- + 2,500/- + 500/- + 10,000/- + 10,000/-) as additional compensation. The 3^rd respondent being the insurer shall pay the above sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding a period of 666 days being the delay occurred in filing the appeal on hand, in favour of the petitioner, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019.

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M.A.C.A. is allowed accordingly.

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Sd/- MARY JOSEPH,

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ttb

Sarath Sasi (Minor) v. Sibi.M.J

Case brief

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Sarath Sasi (Minor) v. Sibi.M.J

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