Kerala High Court: In a motor accident claims appeal where the woman was rendered disabled in 19-year-old childhood road accident case, a Single Judge Bench of C. Pratheep Kumar enhanced the compensation awarded to the appellant by revising the notional income used for assessing loss of disability, considering the severity of the girl’s condition. The Court held that the appellant was entitled to just and reasonable compensation within the present proceedings, on par with any other road traffic accident victim. Consequently, the appellant was held entitled to total compensation of Rs. 53,88,750/-.
Background
A seven-year-old minor girl, who suffered 70% neurological and 70% orthopedic disability resulting in complete loss of function in all four limbs, appealed before the Court challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal.
The accident occurred in 2006 while the child was walking along the western side of the bypass. A car, driven recklessly and at high speed by the respondent 2, hit the child, causing her severe head injuries. She was hospitalised and treated as an inpatient for 77 days. Respondent 1 owned the vehicle, and respondent 3 was its insurer.
Respondent 3-the insurer admitted the accident and the existence of a valid insurance policy but contended that the vehicle lacked a valid permit and fitness certificate. It also attempted to shift the blame to the appellant.
The Tribunal, after evaluating the evidence, found the respondent 2 negligent and assessed the total compensation at Rs. 11,54,519/-, limiting the payable amount to Rs. 11,04,550/-. The insurer was directed to pay compensation, with the right to recover the amount from the respondent 1 due to the lack of valid permit and fitness certificate.
Issues, Analysis and Decision in the plea of woman rendered disabled in 19-year-old childhood road accident
1) Is not a victim of a road accident, staying in an orphanage, entitled to get compensation on a par with others?
The Court noted that due to the injuries sustained in the accident, the appellant had become completely bedridden and was unable to move, as all four of her limbs were non-functional. As per the disability certificate issued by the Medical Board, her neurological and orthopedic disabilities were each assessed at 70%. The Tribunal had fixed her notional income at Rs. 2,000/-, applied a multiplier of 18, and assessed the compensation accordingly, without adding any amount towards future prospects. Following the tragic accident in 2006, the appellant lost her mother in 2009 and her father in 2020, leaving her sister as her only surviving relative. As her sister was living with her husband and child and there was no one else in the family to care for the appellant, she was admitted to the orphanage.
The Court further noted that, in the meantime, an application was filed by the insurer under Section 151 CPC, seeking a direction to the appellant to produce bills, receipts, and other records related to the expenses incurred for the treatment and care of the appellant after the date of the impugned award.
The Court observed that the insurer’s intention in filing the application appeared to be to establish that, since the appellant had been admitted to an orphanage and was under the care of its authorities, substantial future medical expenses might not be necessary. In response, the appellant submitted that, based on the information available, the appellant’s condition was such that no further treatment was likely to improve her severely incapacitated state.
The Court acknowledged that, at present, the appellant was residing in an orphanage and living at the mercy of its officials, an outcome resulting from her helpless condition caused by the injuries sustained in the accident. It observed that the orphanage had no independent income and relied entirely on public donations and offerings for its day-to-day operations. As such, there was no assurance that it would be able to sustain its support for the appellant indefinitely.
The Court emphasised that the victim could not be left dependent on the goodwill of the orphanage officials by denying her the legitimate compensation owed for the injuries she suffered. It cautioned that, should the orphanage face financial difficulties or be unable to continue its operations for any reason, there would be no one left to care for the appellant. In such a scenario, she would also be unable to return to court to seek further compensation.
Accordingly, the Court held that the appellant was entitled to receive just and reasonable compensation within the present proceedings, as would be awarded to any other victim of a road traffic accident.
2) Whether an admission made by the counsel can stand in the way of awarding just compensation to the victim?
The Court noted that the counsel for the respondent had argued that, before the Tribunal, the counsel for the appellant had agreed to a notional income of Rs. 3,000/-, and therefore, the High Court could not now fix a higher notional income than what was originally suggested.
The Court observed that the victim was a minor at the time of her admission and was a non-earning child aged 7 years, which necessitated the fixing of notional income for the purpose of assessing compensation for disability. Since the accident occurred in 2006, the Court held that an amount like Rs. 3,000/- could not be considered excessive or unreasonable for that period.
It reiterated that the law is well settled, that while awarding just and reasonable compensation, courts and tribunals are not restricted to the amount claimed in the petition. Though the Tribunal, in the impugned award, recorded that the appellant’s counsel had suggested a notional income of Rs. 3,000/-, it ultimately did not accept that submission.
Considering the severity of the appellant’s injuries, which rendered her bedridden and entirely dependent on others for even basic daily needs, the Court held that just and reasonable compensation must be awarded, along with effective provision for its utilisation. The fact that the appellant was also an orphan further strengthened the need for proper financial support.
In this context, the Court stated that the insurer could not be allowed to take advantage of the suggestion made by counsel before the Tribunal, especially when it was not accepted by the Tribunal. Therefore, the Court held that it had a duty to award just and reasonable compensation, regardless of the said submission, ensuring the appellant received the support necessary for the remainder of her life.
3) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?
The Court noted that the appellant was a first standard student at the time of the accident. Due to the injuries sustained, she was unable to continue her education. As a result, she was deprived of the opportunity to experience the normal joys of childhood, adolescence, and youth. She would miss the fun of growing up, the excitement of youth, the experiences of marital life, and the possibility of motherhood. In fact, she remained confined to a small room, completely dependent on others, through no fault of her own.
The Court held that the compensation to be awarded to the appellant must not be inadequate. It needed to be sufficient to meet all future exigencies that she was likely to face due to the grievous injuries sustained. This objective was to guide the determination of compensation under each head, including the fixation of notional income.
As the disability certificate issued by the Medical Board, the appellant’s neurological and orthopedic disabilities were each assessed at 70%. Further, the Tribunal had observed that her earning capacity had been reduced to 0%, effectively meaning a 100% disability. Despite this, the Tribunal assessed compensation based only on 70% of disability.
Given the appellant’s extremely severe condition, being completely bedridden, with all four limbs non-functional and unable to move without assistance, the Court held that her functional disability must be taken as 100%. Further, since she was only 7 years old at the time of the accident, 40% was to be added towards future prospects, and a multiplier of 15 was to be applied.
Accordingly, the Court calculated the compensation for loss of disability at Rs. 15,12,000/-.
The Court observed that since the appellant had been completely bedridden, requiring assistance for every basic function including attending nature’s call, she was entitled to reasonable compensation towards bystander expenses.
Therefore, the Court held that the compensation for bystander expenses should not be inadequate. Even applying a multiplier of 15, the bystander cost worked out to Rs. 18,00,000/- (i.e., Rs. 5,000 × 2 × 12 × 15). However, considering all relevant circumstances, the Court fixed a sum of Rs. 15,00,000/- under this head as just and reasonable.
The Court further noted that the appellant required physiotherapy, speech therapy, and counseling. Given her completely bedridden condition, she would also require diapers, gloves, cleaning materials, and other essential supplies. Accordingly, a sum of Rs. 5,00,000/- was awarded under the head ‘future medical expenses’.
Considering the grave nature of her injuries and the high degree of disability, the Court found that the compensation previously awarded for extra nourishment was too meagre and enhanced it to Rs. 1,00,000/-. Similarly, compensation for loss of marriage prospects was enhanced to Rs. 2,00,000/-. The Court noted an error in the tabular statement, where Rs. 1,00,000/- had been shown under ‘compensation for disfiguration’, which was to be deducted as it was a mistake. No changes were made to the other heads of compensation, as the amounts already awarded were found to be reasonable.
Therefore, the appellant was held entitled to a total compensation of Rs. 53,88,750/-.
The Court directed the insurer to deposit a total sum of Rs. 53,88,750/-, after deducting any amount already deposited, along with interest at the rate of 8% per annum from the date of the petition until deposit or realisation. The deposit was to be made within two months from the date of the judgment, along with proportionate costs.
Upon such deposit, the Court ordered the Tribunal to disburse 10% of the total amount (excluding court fee, if any) to the guardian of the appellant immediately. The remaining balance was to be deposited in long-term fixed deposit(s) in a nationalised bank in the name of the appellant, represented by her sister as guardian. A lien was to be marked on the face of the deposit receipt(s), indicating that the amount could only be withdrawn with the Tribunal’s permission.
The Court noted that the Tribunal had also found that the vehicle involved in the accident lacked a valid permit and fitness certificate. Accordingly, the insurer was permitted to recover the compensation amount from the vehicle owner.
[Sumisha v. Shaji PY, MACA No. 1085 of 2013, decided on 21-05-2025]
Advocates who appeared in this case :
For Appellant: BY ADVS. T.C.SURESH MENON A.R.NIMOD
For Respondents: BY ADVS. A.A.MOHAMMED NAZIR-SC PMM.NAJEEB KHAN
