Annex Gireesh (minor) v. Sunny Sebastian, Gireesh P.V. and National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945** **MACA NO. 430 OF 2015** **OPMV NO.49 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **WAYANAD ,KALPETTA** ## **APPELLANT/PETITIONER:** **ANNEX GIREESH (MINOR) AGED 10 YEARS DOB 17/12/2001, REPRESENTED BY HIS MOTHER AND LEGAL GUARDIAN NISHA A.R., D/O. RAVI A.N., RESIDING AT PUTHALATH HOUSE, KAKKAVAYAL POST, KALPETTA(VIA), WAYANAD-673 122. BY ADV SRI.AVM.SALAHUDIN** ## **RESPONDENTS/RESPONDENTS:** **1 SUNNY SEBASTIAN, S/O.SEBASTIAN AGE NOT KNOWN, RESIDING AT PANAKKATTU PARAMBIL HOUSE, NEAR BATHERY POST, WAYANAD-673 592. 2 GIREESH P.V. AGED 37 YEARS S/O. BHASKARAN P.K., RESIDING AT PUTHALATH HOUSE, PATTAVAYIL POST, GUNDALLUR, THE NILGIRI DISTRICT, TAMIL NADU-673 001. 3 NATIONAL INSURANCE CO. LTD. DO: NOOR COMPLEX, NEAR SBT, ARAYEDATHUPALAM, MAVOOR ROAD, KOZHIKODE-673 001. BY ADVS. SRI.P.THOMAS GEEVERGHESE SRI.PMM.NAJEEB KHAN SRI.TONY THOMAS INCHIPARAMBIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.430/2015 : 2 : ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.49/2013 on the files of the Motor Accident Claims Tribunal, Wayanad, Kalpetta. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 23.01.2010. At the relevant time, the appellant was a minor aged 10 years only. The accident occurred when the Omni van in which he was travelling, collided with a KSRTC bus bearing registration No.KL-15/4447. According to him, the accident occurred due to the negligence of the driver of the Omni van, the 2[nd] respondent. The 1[st] respondent was the owner of the said Omni van and it was insured with the 3[rd] respondent. Consequent to the injuries, the left leg of the appellant was amputated and the Medical Board issued Ext.C1 disability certificate wherein the percentage of disability has been certified as 30%. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent filed a written statement admitting the existence of valid insurance policy for the said vehicle. M.A.C.A. No.430/2015 : 3 : However, it was contended that the Maruti van had no valid permit for the said vehicle at the relevant time and therefore, they contended that there was violation of policy conditions. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of oral testimony of PW1 and Exts.A1 to A8. The disability certificate issued by the District Medical Board, Mananthavadi was marked as Ext.C1. No evidence was adduced by the respondents. 5. After the trial, the tribunal found that the accident occurred due to the negligence of the 2[nd] respondent. It was also found that there was violation of policy conditions at the instance of the 1[st] respondent and hence even though the 3[rd] respondent was held liable to pay the compensation at the first , they were permitted to recover the said compensation from the 1[st] respondent, after satisfaction of the award. The quantum of compensation was fixed as Rs.3,61,595/- and the said amount was directed to be deposited with interest at the rate of 9% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. M.A.C.A. No.430/2015 : 4 : 6. Heard Sri. A.V.M. Salahuddeen, the learned counsel appearing for the appellant and Sri. P.M.M. Najeeb Khan, the learned counsel appearing for the 3[rd] respondent. 7. The only question that arises for consideration is whether any enhancement of compensation is necessary or not. The tribunal calculated the compensation by relying upon the decision of the Hon'ble Supreme Court in **Master Mallikarjun v. Divisional Manager, The National Insurance Co.Ltd. and another** [2013(3) KLJ 815] wherein it was observed by the Hon'ble Supreme Court that if the disability of minor children is between 10 and 30% a minimum compensation of Rs.3,00,000/- should be awarded. However, the learned counsel for the appellant points out that this is a case in which the disability suffered by the appellant is the amputation of one leg below knee. As per the provisions of the Employees Compensation Act, the same would attract 50% of the disability and this should be taken into consideration. The said contention was opposed by the learned counsel for the 3[rd] respondent by pointing out that appellant was only a minor aged 10 years at the time of the accident and therefore, the percentage of disability as shown in Employees Compensation Act need not be M.A.C.A. No.430/2015 : 5 : taken into consideration. However, I am not inclined to accept the contention of the learned counsel for the 3[rd] respondent. This is particularly because, even though the appellant was a non-earning person at the time of the accident, being a minor aged just 10 years, he was supposed to start earning, once he attains a particular age. Since, one leg was amputated, at that point of time, he will have serious difficulties and it will certainly affect his capacity to earn. Therefore, an assessment without taking note of the aforesaid aspect, may not be fair and hence I find that, the assessment of percentage of earning power mentioned in Employees Compensation Act, which is prepared based on scientific data, is to be accepted. 8. The next element to be considered is the monthly income. The learned counsel for the appellant places reliance upon **Kajal v. Jagdish chand** [2020 (1) KLT 743] wherein the Hon'ble Supreme Court was pleased to take the minimum wages payable to a skilled workmen which was Rs.4,846/- and calculated the compensation on the basis of the same. The accident in the said case occurred in the year 2007 whereas the accident in this case occurred in the year 2010. In such circumstances, I am inclined to M.A.C.A. No.430/2015 : 6 : take the monthly income as Rs.5,000/-. In **Kajal** 's case, the Hon'ble Supreme Court also made an addition of 40% towards future prospects considering the serious nature of disability. In this case, it is a fact that, the appellant sustained amputation of one leg at the young age of 10 years. This will affect his earning capacity in a substantial manner, as it limits the choices available for him as far as the profitable professions are concerned. Therefore, I deem it appropriate to take the future prospects as well. Thus while considering the compensation for disability with the monthly income of Rs.5,000/- with future prospects of 40%, the amount would come to Rs.6,30,000/- [(5000+40%)x12x15x50%]. The amount already awarded by the tribunal under this head is Rs.3,00,000/- and thus the additional compensation comes to Rs.3,30,000/-. 9. The learned counsel for the appellant points out that, he requires compensation for the artificial limb and he may also incur expenses for replacing the same as he grows, besides the expenses for maintenance of the same. It is evident from the records that this is a case of amputation and evidently, he has to depend upon an artificial limb. The learned counsel for the 3[rd] respondent points out that, no evidence has been adduced to show M.A.C.A. No.430/2015 : 7 : that he has been using artificial limb and he spent amounts for purchasing the same. However, since this is a case of amputation this is something which can be taken judicial notice of. There cannot be any dispute that the appellant has every right to lead a normal life by depending upon artificial limb. However, in the absence of any evidence as to the amount which he had incurred or to be incurred towards the replacement of the same and made, I deem it appropriate to grant a lumpsum compensation of Rs.2,00,000/- for this purpose. 10. The next head which requires consideration, is compensation for pain and suffering. As it is a case of amputation at the young age of 10, a reasonable amount of Rs.1,00,000/- is fixed as the compensation under this head. Similarly with regard to the loss of amenities also, an amount of Rs.1,00,000/- is awarded taking note of the fact that, such serious nature of disability would have far reaching impact upon the life of the appellant. He has to live with that disability for remainder of his life. It will deny him various kinds of pleasures of life. Therefore, Rs.1,00,000/- is perfectly justified. In such circumstances, the additional compensation is determined as Rs.7,30,000/-/ [330000+200000+ M.A.C.A. No.430/2015 : 8 : ## 100000+100000]. In the result, this appeal is allowed. The award dated 30.05.2014 passed by the Motor Accident Claims Tribunal, Wayanad, Kalpetta in OP(MV) No.49/2013 is hereby modified by granting an additional compensation of Rs.7,30,000/- (Rupees seven lakhs thirty thousand only) and the 3[rd] respondent is directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation with proportionate costs. However, it is clarified that, as this Court did not interfere with the finding of the tribunal permitting the 3[rd] respondent to recover the compensation from the 1[st] respondent, they shall be entitled to realise the additional compensation also from the 1[st] respondent after satisfaction of the award. It is further clarified that as the delay of 158 days in filing the appeal was condoned by this Court subject to the condition that the appellant shall not be entitled to interest for the period for the additional compensation, if any, granted, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that the claimant shall furnish the details of the PAN card, Aadhar card and bank details to enable the 3[rd] M.A.C.A. No.430/2015 : 9 : respondent to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/