FAYAS.K.B. (minor) through his father Basher v. Anar; Anoop; The New India Assurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** ## **MACA.No.1728 OF 2014** **AGAINST THE AWARD IN OP(MV) 817/2010 DATED 04-03-2014 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** **FAYAS.K.B., AGED 14 YEARS, THROUGH HIS FATHER BASHER, KIZHUKKAVIL HOUSE, INCHOOR, KOZHIPPILLY P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.K.K.MOHAMED RAVUF** ## **RESPONDENTS/RESPONDENTS:** **1 ANAR, S/O.MUAHMMED, MOLATHAN HOUSE, KAVALANGADU, NELLIMATTOM, KOTHAMANGALAM, ERNAKULAM DISTRICT. 2 ANOOP, S/O.SULAIMAN, ANAKKALLIL HOUSE, KAVALANGADU, NELLIMATTOM, KOTHAMANGALAM, ERNAKULAM DISTRICT. 3 THE NEW INDIA ASSURANCE COMPANY LTD BRANCH OFFICE, MUVATTUPUZHA, ERNAKULAM DISTRICT. R3 BY ADV. SRI.A.C.DEVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2021, THE COURT ON 19-03-2021 DELIVERED THE FOLLOWING:** ## **MACA.No.1728 OF 2014 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.817 of 2010 on the file of the MACT, Muvattupuzha. The respondents in the appeal were the respondents in the claim petition. 2. The appellant had filed the claim petition u/s.166 of the MV Act 1988 claiming compensation on account of the injuries that he sustained in an accident on 25.6.2010. The concise case of the appellant in the claim petition, which is relevant to the determination of the appeal is: on 25.6.2010 while the appellant was walking through the KothamangalamVazhakkulam Public road, when he reached the Shappumpadi junction injured, a lorry bearing Reg.No.2553 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner and at an excessive speed hit the appellant. The appellant sustained serious injuries. The appellant was aged 10 years on the date of accident and he was studying in the 5[th] standard. The accident occurred solely due to the negligence on the part 2[nd] respondent. The 1[st] respondent is ## **MACA.No.1728 OF 2014 3** the owner and the 3[rd] respondent is the insurance company of the offending vehicle. Respondents were jointly and severally liable to pay the compensation to the appellant, which he quantified at Rs.12 lakh. 3. Respondents 1 and 2 remain did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent filed a written statement, inter alia, admitting that the offending vehicle was insured by it, but disputed its liability. It was contended that the amount of compensation claimed by the appellant was exorbitant and excessive. The accident occurred solely due to the negligence on the appellant and, therefore, the 3[rd] respondent is not liable to pay any compensation. 5. The appellant marked Exts.A1 to A9 (a) in evidence. Ext.C1 disability certificate was marked as a court exhibit. Respondents did not adduce any evidence. 6. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition in part by ordering that the appellant is entitled ## **MACA.No.1728 OF 2014 4** for a compensation of Rs.7,04,795/-. However, the Tribunal directed the appellant to recover an amount of Rs.7,98,800/(after deducting the amount paid as per the interim award of Rs.25000/-) along with interest @ 8% per annum from the date of petition till date of realization and proportionate costs to be recovered from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 8. Heard Sri.Mohamed Ravuf, the learned counsel appearing for the appellant/petitioner and A.C.Davy, the learned counsel appearing for the 3[rd] respondent/insurance company. 9. The question that arises for consideration in this appeal is whether the compensation awarded by the Tribunal is reasonable and just. 10. A constitution Bench of the Hon'ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680)**_ , has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just ## **MACA.No.1728 OF 2014 5** compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. Ext.A4 charge sheet filed by the Police after investigation in Crime No.490/2010 of the Kothamangalam Police Station substantiates that the accident was caused due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent. Ext.A5 wound certificate and Ext.A6 discharge summary proves that the appellant underwent treatment at the Specialist Hospital for a period of 74 days. Ext.A7 medical bills also establishes that the appellant had spent a substantial amount of Rs.3,09,795/- towards his medical treatment. Ext.A8 transportation bills also shows that the appellant had spent an amount of Rs.5,000/- for his transportation. Ext.C1 disability certificate issued by the Govt. Medical College Hospital shows that the appellant has a ## **MACA.No.1728 OF 2014 6** permanent disability of 30% as his left leg below the knee was amputated due to the accident. However, in view of schedule 1 of the Employees Compensation Act, which states that if the knee is amputated with a stump exceeding 12.70 cms., the disability has to be fixed at 50%. Accordingly, the tribunal fixed the disability of the appellant at 50%. 12. The principle area of dispute in the appeal is with regard to the fixation of notional income of the appellant. 13. As the appellant was a student, no amount was shown as his notional income. However, the Tribunal in the impugned award fixed the notional income of the appellant at Rs.3,000/- per month. ## **Notional income** 14. The learned counsel for the appellant relied on the decision of the Hon,ble Supreme Court in _**V**_ . _**Mekala v. Malathi and another (2014 11 SCC 178)**_ to fortify his contention that the Hon’ble Supreme Court in a case of similar circumstances has fixed the notional income of the student, who was aged 16 years in the year 2005, at ## **MACA.No.1728 OF 2014 7** Rs.10,000/- per month. 15. In a recent decision of the Division Bench of this Court in _**National Insurance Company Ltd., v. Fathimath Zuhara (2016 3 KLT 459)**_ following the decision of the Hon’ble Supreme Court in _**Reshma Kumari and Others v. Madhan Mohan and another (2013 9 SCC 65),**_ this Court has fixed the notional income of 11 standard student @ Rs.10,000/- per month as reasonable and just notional income. 16. Following the parameters of the aforecited decisions of the Hon’ble Supreme Court, I fix the notional income of the appellant @ Rs.10,000/- per month. ## **Future prospects** 17 _**. In Pappudeo Yadav v. Naresh Kumar and Others (AIR 2020 SC 4424)**_ following the earlier lie of decisions, the Hon'ble Supreme Court has held that future prospects has to be awarded in the case of loss due to permanent disability. 18. In the case on hand, as the appellant was a student ## **MACA.No.1728 OF 2014 8** aged 10 years, his future prospects has to be fixed at 40% on the total loss of disability. In view of refixation of the notional income of the appellant at Rs.10,000/- and considering that the appellant was only aged 10 years at the time of accident, the relevant multiplier is 14. Hence, taking into consideration the above parameters, the petitioner is entitled for a total compensation of Rs.12,60,000/- towards loss due to disability along with future prospects. ## **Bystander expenses** 19. It is seen that the appellant was hospitalized for a period of 74 days. The Tribunal has only awarded an amount of Rs.11,000/- towards bystander expenses. In _**Lalan D @**_ _**Lalan and Others v. Oreintal Insurance Company Ltd.,**_ _**(2020 9 SCC 805)**_ the Hon'ble Supreme Court has held the bystander expenses has to be fixed in a composite manner instead of following the multiplier method. 20. Taking into consideration that accident occurred in the year 2010, I am of the opinion that the appellant is entitled for bystander expenses at Rs.200 per day for 74 days. ## **MACA.No.1728 OF 2014 9** Hence, the compensation awarded under the head bystander expenses at Rs.11,000/- is enhanced to an amount of Rs.14,800/-. ## **Future treatment** 21. As per Ext.A10 document that has been produced before this Court, it is proved that the appellant had incurred an amount of Rs.60,000/- for purchase of an artificial limb. Hence, the appellant is entitled for reimbursement of the said amount. Hence, I award an amount of Rs.60,000/- towards future treatment. ## **Other heads of claim** 22 **.** With respect to the other heads of claim namely, loss of study, pain and sufferings, loss of amenities, extra nourishment, transportation charges and medical treatment charges, I find that the Tribunal has awarded just and reasonable compensation is does not require any further enhancement. 23. Therefore, on an overall appreciation of the pleadings, materials on record and the law laid down by the ## **MACA.No.1728 OF 2014 10** Hon'ble Supreme Court in the aforecited decisions, I am of the firm opinion that the petitioner is entitled for enhancement of the amounts as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No.|Head<br>of<br>claim|Amount<br>claimed(in<br>rupees)|Amount<br>awarded by the<br>Tribunal<br>(in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---|---| |1|Loss<br>of<br>study|10,000/-|9,000 /-|9,000/-| |2|Pain and<br>sufferings|55,000/-|50,000/-|50,000/-| |3|Loss<br>of<br>amenities|1,50,000/-|40,000/-|40,000/-| |4|Bystander<br>Expenses|10,000/-|11,000/-|14,800/-| |5|Extra<br>nourishme<br>nt|19,000/-|10,000/-|10,000/-| |6|Transporta<br>tion<br>charges|50,000/-|5000/-|5,000/-| |7|Medical<br>treatment<br>charges|4,50,000/-|3,09,795/-|3,09,795/-| |8|Future<br>treatment|---|----|60,000/-| |9|permanent<br>disability<br>with future|2,25,000/-|2,70,000/-|12,68,000/-| ## **MACA.No.1728 OF 2014 11** ||prospects|||| |---|---|---|---|---| ||Total||7,04,795/-|17,66,595/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.10,61,800/- with interest at the rate of Rs.8% per annum on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. The 3[rd] respondent shall deposit the additional compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the additional compensation to the appellant in accordance with law, after deducting the liability of the appellant towards court fee and legal benefit fund, if any, on the enhanced compensation. Sd/- **C.S.DIAS, JUDGE** pm