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2023 DIGILAW 284 (KER)

ANEESHA MOL H. W/O SHAREEF v. NAJEEM @ NEJUMON S/O HAMEED KUTTY

2023-03-20

DEVAN RAMACHANDRAN

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JUDGMENT : DEVAN RAMACHANDRAN, J. 1. This case presents a text book example of how a careless road accident can destroy people and families. 2. On 19.04.2014, when little Amaah Feram - who was just one year old - was travelling along with her mother in a car, it was rammed into by the offending pick-up van, which was travelling in the opposite direction, driven in a rash and negligent manner. The aftermath of the injuries suffered by little Amaah Feran is such that it has left her in a vegetative state ever since; and by the way things are now presenting, her condition may not improve. She, along with her mother, filed OP (MV) No. 1444/2014, before the Motor Accidents Claims Tribunal, Kollam (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of an amount of Rs. 50,00,000/- but which has been awarded only to a sum of Rs. 20,72,445/-. 3. The appellants assail the compensation awarded by the learned Tribunal as being woefully inadequate, particularly because little Amaah Feram requires full time assistance and is surviving with the aid of several life-preserving articles including diapers, catheters and such other. 4. Smt. Sumathi Dandapani, learned Senior Counsel, instructed by Sri. Millu Dandapani - learned counsel for the appellants, passionately submitted that no amount would be sufficient to obtain full solace to the appellants, particularly little Amaah Feram. She submitted that when Amaah Feran should be running around like a happy child, she is confined to bed, without any ability to move on her own, or even to take care of her basic needs; and that this is now such a strain on the family that her father, who was employed abroad, has returned to take care of her. She submitted that, therefore, the compensation awarded by the Tribunal under the heads ‘Loss of Amenities’ and ‘Pain and Suffering’ is totally inadequate; adding that same under the head ‘Disability’ also requires to be escalated substantially. 5. Sri. N.S. Najeeb - learned Standing Counsel for the Insurance Company, on the other hand, submitted that, not only has the Tribunal acted in a fair manner while awarding compensation, it has, in fact, offered much more than what is really eligible because the notional income of Amaah Feram has been reckoned to be Rs. 5,000/- per month. 5. Sri. N.S. Najeeb - learned Standing Counsel for the Insurance Company, on the other hand, submitted that, not only has the Tribunal acted in a fair manner while awarding compensation, it has, in fact, offered much more than what is really eligible because the notional income of Amaah Feram has been reckoned to be Rs. 5,000/- per month. He then added that, going by the various judgments of the Hon’ble Supreme Court, the maximum annual income that could have been taken in the case of a one year old child would not be more than Rs. 30,000/- or so, and thus prayed that this Appeal be dismissed. He concluded saying that, in any event, the condition of little Amaah Feran must have improved by this time and therefore, that no escalation of compensation is now warranted. 6. I have considered the afore rival submissions on the touchstone of the evidence on record - copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. 7. As I have prefatorily said, the fate of little Amaah Feran is, in fact, worse than death. For the last nearly nine years, she has been confined to bed and has been living a vegetative life, with constant attention required on a 24 x 7 basis. The strain this must cause on her mother and other family members, can never be understated; though it is without doubt that any mother would happily accept the said responsibility without any demur. 8. As I have indited above, Smt. Sumathy Dandapani - learned Senior Counsel, submits that the father of little Amaah Feran has now been forced to return to India to take care of her and obviously, the income of the family must have also been substantially prejudiced. 9. In the afore perspective, when I examine the medical evidence produced by the appellant, little Amaah Feran still has seizures and is required to be often put on ventilatory support and resuscitated, along with administration of Anti-Epileptics. Ext.A4 - Wound Certificate, read along with Exts.A6, A7, A8 and A10 - Discharge Summaries and Treatment Certificates, render it apodictic that Amaah Feran has suffered severe head injury, along with fracture of right femur. Ext.A4 - Wound Certificate, read along with Exts.A6, A7, A8 and A10 - Discharge Summaries and Treatment Certificates, render it apodictic that Amaah Feran has suffered severe head injury, along with fracture of right femur. The imaging of her brain done through Computerized Tomography (CT) and other methods, fortifies the suspicion that her condition may never improve, but may worsen as time passes. This is because, the scans show that she had suffered “juxta - dural membrane subdural hematoma” (sic) even when she was admitted on 30.08.2014, which continued subsequently, requiring “craniotomy” to be performed. The doctors have diagnosed her condition as severe brain injury, along with post-traumatic epileptic encephalopathy; and they certify, without any scope or doubt, that little Amaah Feran has lost control of her head and is unable to sit without assistance, since her head would, otherwise, fall from her neck. 10. The factum of little Amaah Feran being 100% disabled is fully admitted and Ext.C1 - Certificate, issued by a competent Medical Board, certifies so. I do not, therefore, require to delve any more on the percentile of her disability, since it is fully without contest. 11. I do not, consequently, think it is necessary to speak any further on her condition because, as has been correctly found by the learned Tribunal itself, the small child has been robbed of her childhood and denied of all the life milestones that a girl would have achieved, had she lived without having to go through this trauma. She requires continuous treatment; but more importantly, constant attention, which can be provided only by a fulltime assistant/attender. 12. The Hon’ble Supreme Court has, in many judgments, taken note of analogous factual circumstances, to hold that, apart from the compensation granted under the traditional heads - including for disability, a person who is so injured, particularly a child, would have to be offered sufficient sums to obtain full time assistance, for life. 13. In fact, in Kajal vs. Jagdish Chand and Others, (2020) 4 SCC 413 , the Hon’ble Supreme Court awarded Rs. 10,000/- per month for availing the assistance of two attenders, taking note of the prevalent fiscal circumstances of the year 2007 - in which the accident in that case occurred - where the injured was 100% disabled. 14. 13. In fact, in Kajal vs. Jagdish Chand and Others, (2020) 4 SCC 413 , the Hon’ble Supreme Court awarded Rs. 10,000/- per month for availing the assistance of two attenders, taking note of the prevalent fiscal circumstances of the year 2007 - in which the accident in that case occurred - where the injured was 100% disabled. 14. In Jithendran vs. New India Assurance Company Limited and Another, 2021 KHC 6653, the Hon’ble Supreme Court has re-stated the very same principles, sanctioning specific amounts for a full-time attender, again reckoning the figure of Rs. 5,000/- for such purpose, since the accident involved in the said case occurred in the year 2001. 15. As far as this Appeal is concerned, the accident happened in the year 2014, and the horrific aftermath of the injuries sustained by little Amaah Feran has forced her to be confined to bed, under the care of others, ever since. It is well chronicled, and can be judicially taken note of that, in Kerala, the cost of personnel - particularly qualified ones to be in the specialized care of the child like Amaah Feran - is much more than Rs. 5,000/- per month, even in the year 2014. I, therefore, propose to award Rs. 10,000/- to the claimants in this case to provide for two attenders, advering to her specific requirement of being taken care of constantly. Since little Amaah Feran will require this for her life, the multiplier as postulated in Sarla Verma and Others vs. Delhi Transport Corporation and Another, 2010 (2) KLT 802 , will have to be pressed into service for computation of the final compensation even under such head. 16. That apart, it is without contest that little Amaah Feran is now surviving with the aid of indispensible medical articles like diapers, gloves and such other, to keep her comfortable as possible. In Abhimanyu Partap Singh vs. Namitha Selchon and Another, (2022) 8 SCC 489 , the Hon’ble Supreme Court, faced with a similar situation, awarded Rs. 2,000/- per month towards such facilities. Adopting a very conservative estimate, I am certain that an amount of Rs. 1,500/- should be the least that this Court needs to offer to the little child in this case. 17. 2,000/- per month towards such facilities. Adopting a very conservative estimate, I am certain that an amount of Rs. 1,500/- should be the least that this Court needs to offer to the little child in this case. 17. That now leaves me with the corollary question as to what is the multiplier to be adopted for the purpose of reckoning compensation towards “Attender Expenses” and “Medical Articles.” In United Insurance Company Limited vs. Dilna Dineshan, 2022 (2) KHC 396 , a learned Judge of this Court has adopted the multiplier to be ‘18’ in a case where the injured was 100% functionally disabled. 18. It is well known that the multiplier is normally adopted depending on an estimate of the longevity of the injured. In this case, the accident happened nearly nine years ago, and little Amaah Feran is now nearly 10 years old. I am, therefore, of the firm view that this Court will be justified in following Dilna Dineshan (supra), as a special case, and in adopting the multiplier to be ‘18’ instead of ‘15’ which is normally adopted under Section 163A of the Motor Vehicles Act. This is more so because, even in Kajal (supra), in the case of a 12 year old child, who had 100% disability, the Hon’ble Supreme Court took the multiplier to be ‘18’. 19. That being said, I cannot find the compensation awarded by the Tribunal under the head “Permanent Disability” to be inadequate because, for such purpose, it has reckoned Rs. 5,000/- to be the notional income of Amaah Feran per month. I do not intend to disturb it; and therefore, confirm it. 20. Moving on, though the Tribunal has correctly awarded Rs. 3,00,000/- towards “Pain and Suffering” it has confined the compensation for “Loss of Amenities” to a mere Rs. 10,000/-. This is perhaps because, the law settled is to the effect that, when disability is fully compensated, the sums against the head “Loss of Amenities” will have to be kept to a minimum. However, I am certainly of the view that the amount now awarded by the Tribunal has no rational nexus to the suffering and lack of control of body by little Amaah Feran and I, therefore, am persuaded to increase the compensation under this head to Rs. 2,50,000/- particularly because, in Kajal (supra), the Hon’ble Supreme Court has granted a sum as large as Rs. 2,50,000/- particularly because, in Kajal (supra), the Hon’ble Supreme Court has granted a sum as large as Rs. 15,00,000/- under both these heads. 21. Finally, under the heads “Extra Nourishment” and “Bystander Expenses” the learned Tribunal has effectively awarded only Rs. 150/- and Rs. 200/- per day as expenses for 66 days of hospitalization. I am afraid that these sums are too low and that a minimum of Rs. 300/- and Rs. 400/- respectively ought to have been reckoned as her per diem expenses. 22. On the other heads, the compensation granted by the Tribunal is in order; and I find no reason to intervene with the same. Resultantly, this appeal is partly allowed in the following manner: (a) An amount of Rs. 21,60,000/- (Rupees twenty one lakhs sixty thousand only) is additionally awarded towards “Attender charges” at the rate of Rs. 10,000/- per month (whether the appellants intend to engage one or two attender, as per their choice), and adopting the multiplier of ‘18’ as said above. (b) An amount of Rs. 3,24,000/- (Rupees three lakhs twenty four thousand only) is awarded towards “Medical Articles” like diaper, gloves, catheter and others, at the rate of Rs. 1500/- per month and adopting the multiplier of ‘18’. (c) The compensation under the heads “Loss of Amenities” is enhanced to Rs. 2,50,000/- (Rupees two lakhs fifty thousand only), from Rs. 10,000/- as awarded by the Tribunal. (d) The compensation under the head “Extra Nourishment” is enhanced to Rs. 19,800/- (Rupees nineteen thousand eight hundred only), from Rs. 9,900/- awarded by the Tribunal, reckoning Rs. 300/- per day, for 66 days of hospitalization. (e) The compensation under the head “Bystander Expenses” is enhanced to Rs. 26,400/- (Rupees twenty six thousand four hundred only), from Rs. 13,200/- awarded by the Tribunal, reckoning Rs. 400/- as per day expenses, for 66 days of hospitalization. (f) An amount of Rs. 3,00,000/- (Rupees three lakhs only) is additionally awarded towards cost of “Future Treatment” and “Transportation Charges” and such other, adverting to the fact that the 2nd appellant is confined to bed for life and is already suffering from seizures and such other conditions. (g) In all other heads, the compensation granted by the Tribunal will remain intact. 23. 3,00,000/- (Rupees three lakhs only) is additionally awarded towards cost of “Future Treatment” and “Transportation Charges” and such other, adverting to the fact that the 2nd appellant is confined to bed for life and is already suffering from seizures and such other conditions. (g) In all other heads, the compensation granted by the Tribunal will remain intact. 23. Consequently, the appellants will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7%, as awarded by the Tribunal, except on the amounts granted by this Court towards “Future Treatment” from the date of claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. 24. As far as the compensation awarded by this Court under “Future Treatment” is concerned, the interest thereon shall run at the rate 7% from the date of this judgment until it is realized. 25. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment.