Point of Law: Once compensation is awarded for loss of future earning capacity @ 100% or even anything more than more than 50%, the need to award compensation separately under the head 'loss of amenities' or 'loss of expectation of life' may.

JUDGMENT :

“Not all scars show, not all wounds heal, sometimes you can’t always see the pain someone else feels” Anonymous.

Is the compensation awarded to Dilna, excessive or just, is the question poised in this appeal and cross objection.

2. The observation in Kajal v. Jagdish Chand [(2020) 4 SCC 413] by the Honourable Supreme Court on the point is worth citing:

“3. How does one assess compensation in such a case? No amount of money can compensate this child for the injuries suffered by her. She can never be put back in the same position. However, compensation has to be determined in terms of the provisions of Motor Vehicles Act, 1988 (for short the Act). The Act requires determination of payment of just compensation and it is the duty of the court to ensure that she is paid compensation which is just.”

3. Destiny or fate, whatever you may call it, couldn’t be more tragic than this to Dilna. Little did she foresee the misery coming her way? While travelling in a bus from Azhikode to Puthiyatheru, on 14.01.2006, due to the negligence of its driver, the bus hit a wall and capsized. Dilna suffered multiple injuries and is now paralytic from her chest downwards.

4. Dilna through her next friend and father had filed O.P. (MV)No.1516/2006 before the Motor Accidents Claims Tribunal, Thalassery, against the respondents ? the owner, driver and insurer of the bus bearing registration No.KL 13/H 9778, claiming a compensation of Rs.50,00,000/-. She has averred in the claim petition that, she was treated as an inpatient from 14.1.2006 to 23.2.2006 at the Koyili Hospital, Kannur, Pariyaram Medical College, Kannur and the Tejaswini Hospital, SSIOT, Mangalore. Even now she is continuing with her treatment. She is permanently disabled. On account of the traumatic fractures and dislocation of D2 and D3, she is in a vegetative state and has developed bedsores needing daily dressing. She has no control over her bladder or bowel movements and requires the assistance of two bystanders. She is also advised physiotherapy. She has already incurred Rs.5,00,000/-for medical treatment, extra nourishment and other expenses. She has suffered physical and mental pain, and her mental agony is intolerable. She was an IVth standard student in the Government Fisheries L.P School, Azhikode. Her life expectancy has been considerably reduced. Hence, she is entitled to a modest estimate of Rs.50,00,000/-as compensation from the respondents.

5. In the same accident, two other children sustained injuries and a person lost his life. The children and the legal representatives of the deceased filed O.P (MV) Nos. 1515/2006, 1258/2006 and 1514/2006 before the same Tribunal, seeking compensation from the respondents.

6. The respondents 1 and 2 ? the owner and driver of the bus ? did not contest the claim petitions and were set ex parte.

7. The third respondent ? insurer ? contested all the claim petitions by filing separate written statements, inter alia, asserting that the second respondent was not negligent in causing the accident. In the investigation conducted by the insurer, it was revealed that the accident happened due to the mechanical defect of the bus. The third respondent had also affirmed that the compensation claimed was excessive.

8. The Tribunal consolidated and jointly tried all the claim petitions.

9. Dilna and her Doctor were examined as PWs 1 and 2, and Exhibits A1 to A33 were marked in evidence. The disability certificate issued by a four member Medical Board of the Kerala State Co-operative Hospital Complex and Centre for Advanced Medical Services, Pariyaram, was marked as Ext X1. The respondents did not tender any evidence.

10. The Tribunal, after examining the pleadings and materials on record, by its common award, allowed the captioned claim petition, by permitting Dilna to realise from the third respondent an amount of Rs.25,26,150/-with interest and proportionate cost. The comparative table indicating the compensation that was claimed under the different hea