The court established that a minor with intellectual disability from a road accident can be assessed with 100% functional disability, warranting enhanced compensation due to lifelong needs and dependency.

JUDGMENT :

Shoba Annamma Eapen, J.

“Whether the functional disability of a minor child, who has sustained intellectual disability in a road traffic accident, can be assessed at 100%?”

2. This appeal has been filed by the claimants in OP(MV) No.1121 of 2004 on the files of the Motor Accidents Claims Tribunal, Mavelikkara, claiming enhancement of compensation. The first respondent herein was the third respondent/insurer before the tribunal; and the additional second respondent herein was suo motu impleaded during the pendency of the appeal.

3. The case of the claimants was that on 26.01.2004, while the first claimant/injured was travelling in a car bearing Reg.No.KL-5-D-8856, a pickup van bearing Reg.No.TN-76-5884 driven by the first respondent in a rash and negligent manner, hit the car, whereby she sustained serious injuries. The first claimant, being the injured, and the second claimant, being the mother, guardian and next friend, have approached the tribunal claiming a total compensation of Rs.2,90,000/-.

4. Respondents 1 and 2, who are the driver and owner of the offending vehicle respectively, remained ex parte before the tribunal. The third respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. PW1 & PW2 were examined and Exts.A1 to A23 were marked. The following issues arose for consideration before the tribunal:

“1. Who is negligent in the matter of accident?

2. Whether the petitioners are entitled for compensation and if so, what is the quantum and who is liable?

3. Reliefs and costs?”

The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the driver of the offending vehicle, and following Master Mallikarjun v. Divisional Manager, The National Insurance Co. Ltd. and Another ( 2013 KHC 4670 ) awarded a sum of Rs.4,37,869/- as compensation under respective heads with interest @ 9% per annum from the date of petition till realization, against the third respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimants have come up in appeal.

5. I have heard Sri.K.Shaj and Sri.Bharat Vijay, learned counsel for the appellants; Sri.P.Muraleedharan, learned Standing Counsel for the respondent insurer; and Sri.Shameer P.M., learned Government Pleader.

6. The learned counsel for the appellants submitted that the compensation awarded by the tribunal, as a whole, is on the lower side and sought for enhancement of compensation under different heads, which are considered separately as follows:

6.1. Notional Income & Permanent disability - According to Sri.Bharat Vijay, the learned counsel for the appellants, the first appellant/injured was a very active girl child who sustained severe injuries in the accident at the age of 3½ years, which ultimately resulted in intellectual disability. It is submitted that though the Medical Board of the Medical College Hospital, Alappuzha, assessed her permanent disability at 50% as per Ext.A23 disability certificate, the tribunal, placing reliance on the decision of the apex court inMaster Mallikarjun (supra), awarded only a meagre sum of Rs.4,00,000/- as a consolidated compensation for permanent disability. The learned counsel for the appellants contended that the injured is functionally 100% disabled on account of the intellectual impairment, resulting in total dependence, loss of enjoyment and amenities of life, ongoing unexplained pain, hardship and suffering, and a life long need for support due to limited intellectual capacity. She was admitted to a special school which accommodates students only up to the age of 25 years; and upon attaining that age, she had to be brought back t