Ibnu Masood v. State of Kerala, Director General of Police, Nithiyanandan (Deleted) and United India Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944** ## **MACA NO. 1278 OF 2015** **AGAINST THE JUDGMENT DATED 20.01.2014 IN OPMV NO.245/2003 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANT/PETITIONER:** **IBNU MASOOD AGED 22 YEARS S/O. LATE SIRAJUDHEEN, AGED 22, RESIDING AT DOOR NO.25/586, JINNA NAGAR, KALIKKARA STREET.** **BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA SRI.R.MANIKANTAN** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD - 678 101.** - **2 THE DIRECTOR GENERAL OF POLICE, KERALA STATE, THIRUVANANTHAPURAM – 695 001.** - ***3 NITHIYANANDAN (DELETED) S/O. Q. A VELAYUDHAN, AGED NOT KNOWN, P.C 2561 TOWN NORTH POLICE STATION PALAKKAD – 678 101.** ***R3 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 26/10/2019 IN IA 1/19.** **4 UNITED INDIA INSURANCE COMPANY LIMITED SOORYA COMPLEX, T. B ROAD PALAKKAD – 678 105.** **MACA No.1278 OF 2015** **2** **BY ADVS. R4 - SMT. SAHEERA SRI.P M.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA No.1278 OF 2015** **3** ## **JUDGMENT** This appeal is preferred by the claimant in OP (M.V) No.245 of 2003 on the file of the Motor Accidents Claims Tribunal, Palakkad. The parties in this appeal are referred to as per their status in the claim petition. 2. According to the petitioner, a minor boy aged 14 years, he sustained injuries on 07.07.2000 when a jeep driven by the 3[rd] respondent and owned by the 2[nd] respondent hit the Moped on which he was pillion riding. The petitioner claimed an amount of Rs.7,99,000/- as compensation for the personal injuries sustained in the accident. 3. Respondents 1 to 3 contended that the accident happened due to the negligence of the **MACA No.1278 OF 2015** **4** petitioner himself who was riding the Moped. The 4[th] respondent Insurance Company filed a written statement contending that the accident happened due to the negligence of the petitioner who was not even qualified to apply for a driving licence and that the amount claimed is excessive. 4. The claim petition was initially dismissed by the Tribunal by award dated 01.12.2008 finding that the accident happened due to the negligence of the petitioner who was riding the Moped. The petitioner challenged the award before this Court in MACA No.1825 of 2009 and this Court by judgment dated 15.07.2013 set aside the award and remanded the matter to the Tribunal for fresh consideration after affording opportunity to both sides to adduce evidence. 5. Pursuant thereto, the Tribunal, by the **MACA No.1278 OF 2015** **5** impugned award, found that the accident happened due to the negligence of the 3[rd] respondent, the driver of the Jeep and awarded an amount of Rs.2,80,850/- as compensation with 9% interest per annum from the date of petition till realisation and proportionate costs. 6. Contending that the compensation awarded by the Tribunal is inadequate, the petitioner has preferred this appeal. According to the petitioner, he was aged 14 years at the time of the accident. The permanent disability of the petitioner has been assessed as 16.3% as per Ext.A6 disability certificate. The petitioner had sustained fracture left femur and both bones left leg. Ext.A6 disability certificate shows that the left lower limb movements of the petitioner are restricted making it difficult for him to walk, climb stairs, for standing on the **MACA No.1278 OF 2015** **6** affected leg and to squat. It is also noted that there is shortening of the lower limb by 3/4th of an inch. 7. According to Sri.Binoy Vasudevan, the learned Counsel for the appellant, the Tribunal has not awarded any compensation for loss of future earnings on account of permanent disability. 8. The petitioner was a minor at the time of accident and only a notional income can be fixed for computation of compensation. The learned counsel for the appellant relied on the decision of the Apex Court in **Kajal** _**v**_ **. Jagdish Chand** [2020 (1) KLT 743] wherein, the Court set aside the award passed by the Court below fixing a notional income of Rs.15,000/- per annum and instead went by the minimum wages payable to a skilled workman during the period of the accident (Rs.4846/- per month), and added 40% towards future prospects **MACA No.1278 OF 2015** **7** and applied the multiplier of 18, in the case of a young child of 12 years, to arrive at the compensation payable. The Supreme Court was considering a case where the accident took place on 18.10.2007. The learned counsel also took me through an unreported decision of this Court dated 15.12.2021 in MACA No.1609 of 2016 wherein the judgment of the Apex Court in **Kajal's case** (supra) was relied on and this Court took the notional monthly income of a child aged 12 years at the time of the accident in the year 2010 as Rs.6,000/- and added 40% towards future prospects and applied the multiplier of ‘18’. 9. The learned counsel for the Insurance Company relied on the decision of the Apex Court in **Rajendra Singh** _**v**_ **. National Insurance Co. Ltd.** [2020 (4) KLT 6] wherein, the Court applied the **MACA No.1278 OF 2015** **==> picture [8 x 9] intentionally omitted <==** multiplier of only ‘15’ for assessment of compensation in the case of death of a child aged 12 years. 10. Following the decision in **Kajal's case** (supra), the Apex Court in **Abhimanyu Partap Singh** _**v.**_ **Namita Sekhon & Another** [2022 SCC online SC 793] applied the multiplier of ‘18’ in the case of a minor who was 12 years of age at the time of accident on 10.11.1996. The Court in paragraph 15 of the judgment held as under: “It is also relevant to observe that in the judgment of **Sarla Verma (Smt.) & Others vs. Delhi Transport Corporation and Another(2009) 6 SCC 121** and **National Insurance Company Limited vs. Pranay Sethi & Others(2017) 16 SCC 680** , while replacing the schedule of Motor Vehicle Act, it is not made clear what multiplier would be applicable below the age of 15. In the case of **Kajal (Supra)** , the injured was 12 years of the age, however, the multiplier of 18 has been applied. Therefore, taking guidance from the judgment of **Kajal (supra)** , for determination of the compensation in the present case, the multiplier of 18 shall be applicable.” **MACA No.1278 OF 2015** **9** Taking guidance from the above decisions, I am of the view that, since the accident happened in the year 2000, the notional monthly income of the petitioner can be taken as Rs.3,000/-, 40% of the income can be added towards future prospects and ‘18’ can be applied as the multiplier. Accordingly, the income of the petitioner for the purpose of computing the compensation is fixed as **Rs.4,200/-** (3000+1200). The percentage of loss of earning capacity as a result of the permanent disability in this case has to be taken approximately the same as the percentage of permanent disability assessed in Ext.A6 disability certificate. Accordingly, the compensation payable towards permanent disability is assessed as **Rs.1,47,874/-** (4200 x 12 x 18 x 16.3%). 11. I find that the compensation awarded **MACA No.1278 OF 2015** ## **10** under other heads is just and reasonable. Accordingly, the petitioner will be entitled for an enhanced compensation of **Rs.1,47,874/-** . The 4[th] respondent Insurance Company shall deposit the amount of **Rs.1,47,874/-** before the Tribunal with 9% interest per annum from the date of petition till realisation and proportionate costs, within a period of two months from the date of receipt of a copy of this judgment. While calculating the interest, the appellant/petitioner will not be entitled for interest for a period of 365 days as per order dated 26.10.2019 in C.M. Application No.1422 of 2015. The appeal is allowed as above. ## **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SPR