Josy Paul Akkara v. The Manager, Tate AIG General Insurance Co. Ltd. (2nd Respondent) and the insurer of the motorcycle (3rd Respondent)

M.A.C.A.No.3854/2016 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _SATURDAY, THE 20[TH] DAY OF NOVEMBER 2021 / 29TH KARTHIKA,_ ## _1943_ ## _MACA NO. 3854 OF 2016_ _AGAINST THE ORDER/JUDGMENT IN OPMV 505/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR, ERNAKULAM_ ## _APPELLANT/PETITIONER:_ _JOSY PAUL AKKARA, S/O.JOY, AKKARA HOUSE, ATTARA, MOOKKANNOOR P.O., ANGAMALY._ _BY ADV SRI.A.N.SANTHOSH_ ## _RESPONDENT/2ND RESPONDENT:_ _THE MANAGER, TATE AIG GENERAL INSURANCE CO. LTD., A501, 5TH FLOOR,BUILDING NO.4, INFINITY PARK, DINDOSHI, MALAD EAST, MUMBAI, MAHARASHTRA-400 097._ _R1 BY SRI.R.AJITH KUMAR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.3854/2016 2 ## **JUDGMENT** This appeal is filed by the petitioner in O.P.(MV).No.505 of 2012 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. Claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident occurred on 22.01.2012. The accident occurred when motor cycle on which the petitioner as a pillion rider, collided with a Tata Ace vehicle, driven by the 1[st] respondent in the claim petition. The aforesaid vehicle was insured with the respondent herein. The petitioner was a student aged 17 years at the time of the accident and it was contended that, consequent to the injuries sustained, he lost one academic year. Serious injuries were sustained to him and as compensation he has claimed an amount of Rs.8,00,000/-. 2. The claim petition was contested by the respondent herein, the insurer of Tata Ace vehicle and also by the 3[rd] M.A.C.A.No.3854/2016 3 respondent in the claim petition, who was the insurer of the motor cycle on which the petitioner was a pillion riding. 3. The respondent insurance company disputed the claim put forward by the petitioner, on the question of negligence, liability and quantum of compensation, but coverage of policy over the said vehicle was admitted. 4. The said claim petition was tried along with O.P. (MV).No.504 of 2012, which was a claim petition filed by another victim of the very same accident. Evidence in this case consists of Exts.A1 to A24 from the side of the petitioners. Exhibit-B1, which is the copy of the policy of the vehicle was marked from the side of the respondent. The medical certificates of the petitioner were marked as Exhibits-C1 and C2. 5. Based on the above materials, the Tribunal found that the accident occurred due to the negligence on the part of the Tata Ace vehicle and accordingly respondent herein was found responsible to pay the compensation on behalf of the insured vehicle. Quantum of compensation was fixed as Rs.3,42,485/-. M.A.C.A.No.3854/2016 4 This appeal is filed challenging the quantum of compensation, as according to the appellant it is inadequate. 4. Heard Sri.A.N.Santhosh, learned counsel for the petitioner and Sri.R.Ajith Kumar, learned counsel for the insurance company. 5. The main contention put forward by the learned counsel for the appellant is that the amount awarded under the head of permanent disability is very low when considering the nature of injuries sustained. It was pointed out that, despite the fact that the percentage of disability of the appellant was certified as 7.4%, the amount awarded is only Rs.1,00,000/-, which was done by following the judgment rendered by the Honourable Supreme Court in **Master Mallikarjun v. Divisional Manager, National Insurance Co.Ltd. & Anr. [(2014) 14 SCC 396]=[2013 ACJ 2445].** It is pointed out that, even as per the observations in the said judgment, a different method of computation of compensation is possible in exceptional circumstances, where the factual situation M.A.C.A.No.3854/2016 5 warrants. By relying upon the nature of injuries and the serious impact that may cause to the appellant in his future life, it was pointed out that, this has to be treated as an exceptional circumstance warranting a different method of computation. According to him he is aged 17 years and was pursuing his studies and nature of injuries deprived him from one year of his education. 6. The learned counsel for the insurance company relied upon the judgment reported in **Munavira v. Reliance General Insurance Co.Ltd. [2015 (5) KHC 846]** and contended that the application of method of computation as contemplated in Mallikarjun’s case was insisted upon by this Court when considering the question of injury of children. 7. However, when considering the facts and circumstances of **Munavira** (supra), it can be seen that the said judgment is rendered in a different factual M.A.C.A.No.3854/2016 6 circumstance. That was a case where the victim was aged 7 years and was a school going child. However, in this case, the victim is aged 17 years and he was at the crucial stage of his educational career as it is at this age, the future course of his career is often decided. In such circumstances, the injuries caused to him at that stage and loss of an academic year at that particular point of time may have a serious impact on his future life and hence in my view, the same has to be treated as exceptional circumstance warranting a different approach in the matter of computation of compensation. Hence, I am of the view that, as held by the Honourable Supreme Court in **Master Mallikarjun** (supra), a different approach can be adopted in this case. 8. While taking the aforesaid view, the first criteria to be taken is the probable monthly income of the appellant. Being a student, he was not an earning member. But, as he M.A.C.A.No.3854/2016 7 has sustained certain percentage of disability, the same will affect his earning capacity when he starts earning in a near future. Therefore, it is only just and proper that he should be compensated for such loss. In such circumstances, I am of the view that, as there is no evidence available to reckon the monthly income of the appellant, the principles that has been laid down by the Honourable Supreme Court in **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** and **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]** can be adopted, even though the said method of computation contemplated therein were in respect of persons engaged as a coolie and a vegetable vendor. In my view, the said criteria can be treated as the bench mark and amount of compensation can be fixed on the basis of the same even in respect of the non earning members as well. While computing the compensation on M.A.C.A.No.3854/2016 8 the basis of the same, i.e., taking the monthly income as Rs.4,500/- for the year 2004 and making an addition of Rs.500/- per year for the subsequent years, the monthly income in this case can be taken as Rs.8,500/- as the accident has occurred in the year 2012. The relevant multiplier applicable is 18. Thus, by calculating the compensation for permanent disability under the head with the above criteria, the amount comes to Rs.1,35,864/[8500x12x18x7.4/100]. The Tribunal has already awarded an amount of Rs.1,00,000/- and hence, the balance amount receivable by the appellant is Rs.35,864/- [Rupees thirty five thousand eight hundred and sixty four only]. 9. Other heads which warrant interference are, loss of amenities as well as loss of study. Tribunal has awarded an amount of Rs.40,000/- towards loss of amenities. The nature of injuries are clearly mentioned in the award in paragraph Nos.12 and 13 of the award which are very M.A.C.A.No.3854/2016 9 serious in nature. Considering the aforesaid aspect, I am of the view that a further amount of Rs.10,000/- is justifiable under the head loss of amenities. It was pointed out that he lost an academic year due to the injuries and consequent treatments undergone. The amount awarded under this head is Rs.25,000/-. I am of the view, in the circumstance of the case, a further sum of Rs.15,000/- can be awarded. Thus the total amount comes to Rs.60,864/- [Rupees sixty thousand eight hundred and sixty four only]. The respondent insurance company shall deposit the said amount along with interest at the rate of 9% per annum within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/22.11.21