Jeena Sebastian v. Suresh Kumar, Sajith K.C. and Reliance General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 18[TH] DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943** **MACA NO. 2820 OF 2012** **AGAINST THE AWARD IN OP(MV) 245/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA, KOTTAYAM** ## **APPELLANT/PETITIONER :** **JEENA SEBASTIAN, ORATHEL, ERAVIMANGALAM P.O., NOW RESIDING AT KANNAMKULATHEL, NAZARETH HILLS P.O.(MINOR), REPRESENTED BY HIS FATHER SEBASTIAN JOSEPH, ORATHEL, ERAVIMANGALAM P.O., NOW RESIDING AT KANNAMKULATHEL NAZARETH HILLS P.O., AS THE GUARDIAN.** **BY ADVS. SRI.C.M.TOMY SRI.K.J.JOSEMON SRI.MATHEW SKARIA** ## **RESPONDENTS/RESPONDENTS:** **1 SURESH KUMAR, KUNNATHRIKKATHUMKUZHY (H), VILLOONNI P.O. ARPOOKKARA, PIN-686 008. 2 SAJITH K.C., @ GIREESH, S/O.RAJAPPAN, KUNNATHRIKKEL (H), ARPOOKKARA P.O., KOTTAYAM DISTRICT, PIN-686 001.** M.A.C.A.No.2820 of 2012 ..2.. - **3 RELIANCE GENERAL INSURANCE CO. LTD., ELIZABETH ALEXANDER BUILDING, MARINE DRIVE, COCHIN - 682 011.** **R1 & R2 BY ADVS.SRI.BIJOY CHANDRAN SRI.RAJESH NAIR SRI.K.B.RAMANAND, SR.STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2021, THE COURT ON 18.11.2021 DELIVERED THE FOLLOWING:** M.A.C.A.No.2820 of 2012 ..3.. ## **M.A.C.A.No.2820 of 2012** ## **-------------------------------------------------------** ## **J U D G M E N T** This appeal arises out of award dated 18.10.2012 in O.P.(MV)No.245 of 2010 before the Motor Accidents Claims Tribunal, Pala at the instance of the petitioner, a minor who sustained injuries in consequence of a motor accident occurred on 12.12.2009 near Mettupara Junction, represented by her next friend. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel on both sides. 3. Brief facts of the case are as follows:- According to the next friend of the minor aged 12 years, while the minor was travelling with other passengers in an autorickshaw bearing registration No.KL-36/A 2932 from Mettumpara to Villoonni, a goods autorickshaw bearing registration No.KL-5/Z 2845 came from the opposite direction, M.A.C.A.No.2820 of 2012 ..4.. driven by the second respondent in a rash and negligent manner, hit against the autorickshaw and thereby minor and other travellers sustained injuries. Thus, the minor claimed Rs.10,00,000/- as compensation in this matter. 4. R1 and R2 filed written statement and denied the accident and negligence as contended by the appellant. Valid policy with the third respondent was highlighted. 5. The insurer, third respondent filed written statement and admitted the policy, but negligence, quantum of compensation etc. were disputed. Violation of policy condition was alleged on the ground that the second respondent did not have valid driving license at the time of accident. 6. The learned Tribunal tried this case along with three other connected cases and passed common award. Rs.3,86,707/- was granted as compensation in this case . 7. The appellant canvassed increase under various heads. 8. It is submitted by the learned counsel for the M.A.C.A.No.2820 of 2012 ..5.. appellant that the Tribunal granted Rs.54,000/- alone under the head loss of earning capacity by fixing Rs.15,000/- as the annual income of the minor. 9. It is submitted further that in the decision reported in [2020 (1) KLT 743 (SC)], **Kajal v. Jagdish Chand** , the Honourable Supreme Court held that fixing Rs.15,000/- as the annual income of a young child of 12 years is not a proper way of assessing the future loss of income and each case has to be decided on its own evidence but taking notional income to be at Rs.15,000/- per annum is not at all justified. 10. Reading the above decision, the Honourable Supreme Court dealt with the case of a minor aged 12 years, who sustained 100% disability. In the above case, the Honourable Supreme Court fixed the monthly income at Rs.4,846/- considering the said amount as the minimum wages payable to a skilled workman at the relevant time and 40% addition also was given towards future prospects. Thus, the compensation was arrived at Rs.14,66,000/- in the said case pertaining to an accident on 18.10.2007. M.A.C.A.No.2820 of 2012 ..6.. 11. The learned counsel for the insurance company urged that grant of loss of earnings/disability income in the case of children suffering from disability on account of a motor vehicle accident shall be determined as per the ratio of the decision reported in [(2014) 14 Supreme Court Cases 396], **Mallikarjun v. Divisional Manager, National Insurance Company Limited and Another.** Paragraph 12 of the above decision is highlighted the learned counsel for the insurance company to contend that, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick. In order to address the rival contentions, paragraph 12 of **Mallikarjun's** case ( _Supra_ ) is extracted hereunder; “Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach M.A.C.A.No.2820 of 2012 ..7.. of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakh; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick.” 12. I have perused the facts in the case dealt in **Mallikarjun's** case ( _Supra_ ). In the said case also, the injured was a minor aged 12 years hit by a motorcycle on 05.06.2006 and the disability was assessed to the extent of 34% of right lower limb and 18% to the whole body. In the said case, the Honourable Supreme Court granted Rs.3,00,000/- under various heads including loss of earnings, pain and sufferings etc. The Honourable Supreme Court granted total compensation of Rs.3,75,000/- as tabulated below; M.A.C.A.No.2820 of 2012 ..8.. |Head|Compensation amount| |---|---| |Pain and suffering already undergone<br>and to be suffered in future, mental<br>and<br>physical<br>shock,<br>hardship,<br>inconvenience, and discomforts, etc.<br>and loss of amenities in life on account<br>of permanent disability.|Rs.3,00,000| |Discomfort, inconvenience and loss of<br>earnings to the parents during the<br>period of hospitalisation.|Rs.25,000| |Medical and incidental expenses<br>during the period of hospitalisation for<br>58 days.|Rs.25,000| |Future medical expenses for correction<br>of the mal union of fracture and<br>incidental expenses for such treatment|Rs.25,000| |Total|Rs.3,75,000| 13. Reading paragraph 12 of **Mallikarjun's** case ( _Supra_ ), the earlier decision of the Honourable Supreme Court (two Benches) when considering grant of loss of earnings in a case of fixing 18% as the disability, the Honourable Supreme Court limited the compensation to Rs.3,00,000/- under the head pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, M.A.C.A.No.2820 of 2012 ..9.. and discomforts, etc. and loss of amenities in life on account of permanent disability. However, a deviation there from could be gathered in **Kajal's** case ( _Supra_ ) where the disability assessed as 100% was considered. Coming to this case, 24% disability was assessed as per Ext.A13 and the Tribunal granted Rs.54,000/- alone under the head loss of earnings. It is not in dispute that when the disability is 100% in the case of a minor, the ratio in **Kajal's** case ( _Supra_ ) required to be followed. 14. In **Kajal's** case ( _Supra_ ), the Honourable Supreme Court dealt with an accident on 18.10.2007, wherein Rs.4,846/- with 40% addition towards future prospects was fixed as monthly income while assessing loss of earnings/disability income in a case of 100% disability. In this case, Apex Court considered minimum wages notification fixing minimum wages of a skilled labour during 2010 prevailing in Haryana during the relevant time. Here the minor sustained only 24% disability, therefore 40 % addition granted in **Kajal's** case ( _Supra_ ) as such cannot be followed. Therefore, Rs.4,846/- M.A.C.A.No.2820 of 2012 ..10.. can be considered herein also to fix the loss of disability income or loss of earnings. Therefore, the loss of disability income or loss of earnings is re-calculated as under; 4,846x12x15=8,72,280x24%=2,09,347/- Out of which, Rs.54,000/- was granted by the - Tribunal. 2,09,347-54,000= **Rs.1,55,347/** more is granted under the head loss of earnings. 15. Coming to the other heads, in a case of serious injuries viz., both bone fracture right leg, fracture right thumb PPX and clavicle fracture right with 77 days of hospitalisation including implant fixation and removal, the Tribunal granted Rs.1,13,707/- under the head medical expenses accepting the whole claim submitted by the appellant. Towards pain and sufferings, Rs.55,000/- was granted by the Tribunal. I am inclined to increase **Rs.20,000/-** more under the head pain and sufferings. Towards loss of amenities, the Tribunal granted Rs.40,000/- and also towards disfiguration and loss of marriage prospects, the Tribunal granted Rs.80,000/-. I am inclined to increase **Rs.10,000/-** more under the head loss of M.A.C.A.No.2820 of 2012 ..11.. amenities and **Rs.20,000/-** more under the head disfiguration and loss of marriage prospects. In the result, this appeal is allowed in part. The appellant is found entitled to a further amount of Rs.2,05,347/(Rupees Two lakh Five Thousand Three Hundred and Forty Seven only) in addition to the amount already awarded by the Tribunal under the impugned award. The entire amount of compensation shall carry interest at the rate of 7.5% granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellant within two months from today. Sd/- ## **A.BADHARUDEEN, JUDGE** rk