High Court of KeralaSingle Judge2020-06-17Partly allowed

Mohammed Junaid v. United India Insurance Co. Ltd.

Case / Petition Number:MACA.No.288/2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2020-06-17
Court Decision / Holding: The appeal is partly allowed. The appellant is entitled to an additional ₹10,61,300/- as compensation, with interest at 7.5% per annum from the date of the OP(MV) claim, payable within one month.
Final Disposition: Partly allowed

Parties to the Case

Appellants / Petitioners

Mohammed Junaid

Respondents

The Branch Manager, United India Insurance Company Ltd., Kalpetta, Wayanad District

Legal Representation & Advocates

Counsels for Petitioners

• SMT. CELINE JOSEPH

Counsels for Respondents

• Sri. PMM NajeeB Khan
• Sri. Rajesh Thomas
• Sri John Joseph Vettikkad

Case Synopsis & Summary

This Motor Accidents Claims Appeal arises from the Kerala High Court's review of a Motor Accidents Claims Tribunal award in OP(MV) No.352/2008 (Kalpetta) for Mohammed Junaid, a minor at the time of the 2008 accident, who sustained a traumatic right arm amputation after a jeep struck his bicycle. The Tribunal awarded ₹2,97,400 on several heads for injury and disability, including ₹1,35,000 for permanent disability, with a 50% functional disability and a low notional income of ₹1,250 per month, plus interest at 7.5%. The insurer contested negligence allegations and argued the compensation was excessive; the appellant's guardian, the next friend, later became the appellant upon attainment of majority. On appeal, the High Court undertook a detailed re-evaluation of the compensation in light of the minor's age, education, and potential earning capacity. Relying on Supreme Court authorities such as Mallikarjun, Ramachandrappa, and Syed Sadiq, and noting ICICI Lombard's recognition of an exceptional yardstick, the court held that a higher notional income and future prospects should be considered, and that compensation for pain and suffering, bystander expenses, nourishment, and marriage prospects should be increased. The Court recalculated damages across heads, adjusted for future prospects, and awarded an additional ₹10,61,300 with interest, partly allowing the appeal and directing payment within one month.

Provisions of Law Cited

Section 173, Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Exceptional circumstances can warrant a different yardstick for compensation in minors (ICICI Lombard General Insurance Co. Ltd. v. Amith Varghese; Mallikarjun).
Notional monthly income of a minor may be fixed by reference to minimum plausible earnings (Ramachandrappa; Syed Sadiq).
Permanent disability impacts future prospects; diminished marriage prospects (Mallikarjun).

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that he was a minor at the time of the accident, and that the Tribunal's fixation of disability at 50% and a low notional income (₹1,250 per month) underrate his future earning capacity. He argues that higher compensation should be awarded by applying the principles in Mallikarjun, ICICI Lombard, and related Supreme Court decisions, which permit a higher yardstick in exceptional circumstances for minors with substantial disability and strong educational prospects. He contends that the Tribunal erred in denying compensation for artificial limb and marriage prospects, and that the notional income should reflect his potential after studies; the court should revise heads such as loss of earning, bystander expenses, nourishment, clothing, pain and suffering, and future disability, leading to a significantly higher award.

Contentions of Respondents

The insurer's counsel submits that the accident occurred in 2008 and the Tribunal's award, including interest, should stand; evidence shows the appellant can undertake studies and lead a normal life despite amputation, implying the award was just. They argue that the cited judgments relied on by the appellant are distinguishable on facts and not controlling; revisiting the award is unwarranted; the Tribunal adequately considered the financial loss and future prospects within the existing framework.

Cited Precedents (7)

Case Name	Citation	Treatment	Explanation
V. Mekala v. M. Malathi and another	[(2014) 11 SCC 178]	Distinguished	Court notes that the judgments relied on by the appellant are distinguishable on facts.
Jagdish v. Mohan and others	[2018 (3) SCALE 615]	Distinguished	Distinguishable on facts as argued by the respondent.
Ankur Kapoor v. Oriental Insurance Co. Ltd.	[(2018) 1 SCC 136]	Distinguished	Facts differ; not controlling in the present case.
ICICI Lombard General Insurance Co. Ltd. v. Amith Varghese	[2017 (2) KLT 8]	Positive	Authority for exceptional yardstick in exceptional circumstances; used to justify enhanced award.
Mallikarjun v. National Insurance Co. Ltd.	[(2014) 14 SCC 396]	Positive	Lays baseline principles for compensation to children; used as starting point for calculation with exceptional consideration.
Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd.	[(2011) 13 SCC 236]	Positive	Notional income framework for manual labourers used to assess income for the appellant.
Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.	[(2014) 2 SCC 735]	Positive	Notional income fixed at ₹6,500 per month for self-employed circumstances; used to determine future earnings.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **MACA.No.288 OF 2013** **AGAINST THE AWARD IN OP(MV) No.352/2008 DATED 09-05-2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER:** **MOHAMMED JUNAID, S/o.AZEEZ, AGED 19 YEARS, KANHAYI HOUSE, PANAMARAM POST, CHERUKATTOOR VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT.** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENT/RESPONDENT NO.2:** **THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, RAWTHER BUILDING, NEAR PINANGODE ROAD JUNCTION, MAIN ROAD, KALPETTA, WAYANAD DISTRICT.** **ADV. SRI.PMM.NAJEEB KHAN ADV. SRI.RAJESH THOMAS ADV. SRI JOHN JOSEPH VETTIKKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-06-2020, THE COURT ON 17-06-2020 DELIVERED THE FOLLOWING:** MACA No.288/2013 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 17[th] day of June, 2020**_ Petitioner in OP(MV) No.352/2008 of the Motor Accidents Claims Tribunal, Kalpetta is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by the Award dated 09.05.2012 of the Tribunal. 2. The appellant was a minor when the accident in question happened. The OP(MV) was filed by the father of the appellant as the next friend/guardian. On attaining majority, the guardian was removed from the party array and the appellant presented the OP(MV). 3. In the OP(MV), the appellant-petitioner stated that while he was distributing newspapers, riding a bicycle on 31.07.2008, a jeep driven by the 1[st] respondent in a rash and negligent manner hit the bicycle. The appellant, who was a minor, sustained very serious injuries and his right arm was amputated above elbow. The appellant sought ₹15 MACA No.288/2013 : 3 : lakhs as compensation. 4. The driver of the jeep denied any negligence on his part. The respondent-insurer admitted the accident and insurance policy. However, the respondent denied the negligence on the part of the driver of the jeep. The compensation claimed is excessive, contended the respondent. 5. The appellant produced Exts.A1 to A12 documents. Ext.C1 Disability Certificate was marked as Court Exhibit. PWs 1 and 2 were examined as appellant's witnesses. The Tribunal, after appreciation of evidence, passed an Award allowing ₹2,97,400/- under the following heads:- |**Sl.** **No.**|**Head of claim**|**Amount** **claimed (**`**)**|**Amount** **awarded (**`**)**|**Basis – vital details** **in a nut-shell**| |---|---|---|---|---| |1|Income/notional income|2,400|1,250|Nil| |2|Loss of earning (Total)|10,00,000|7,500|6 x 1250| |3|Loss of earning (Partial)|Nil|Nil|Nil| |4|Medical and miscellaneous expenses|70,000|87,400|Acceptable bills produced`87357/-| |5|Future treatment|Nil|Nil|Nil| |6|Bystander expenses|5,000|1,000|100 x 10| MACA No.288/2013 : 4 : |7|Transportation expenses|20,000|5,000|A11 series| |---|---|---|---|---| |8|Extra nourishment|10,000|1,000|100 x 10| |9|Damage to clothing, etc.|2,500|500|Nil| |10|Pain and suffering|1,00,000|20,000|Nil| |11|Loss of pleasure in life|Nil|Nil|Nil| |12|Shortened expectation of life|Nil|25,000|Nil| |13|Compensation for permanent disability|3,00,000|1,35,000|18x50x1250x12/100| |14|Loss of amenities and conveniences caused|1,00,000|10,000|Nil| |15|Mental Shock and agony|Nil|Nil|Nil| |16|Loss of earning power|1,00,000|5,000|Nil| ||**Total**|`17,07,500 limited to `**15,00,000**|`**2,97,400**|`**2,97,400/-** along with interest at the rate of 7.5% per annum from the date of making the claim till the date of payment| Interest at the rate of 7.5% per annum from the date of the OP(MV) was also awarded. The appellant-insurer was directed to deposit the compensation. 6. Learned counsel for the appellant argued that CW1 Doctor had stated that the disability incurred by the appellant is 80%. The Tribunal, however, fixed the functional disability at 50% only. The appellant was a minor and a Plus One student. While studying, he was earning by MACA No.288/2013 : 5 : delivering newspapers at homes. From the said part-time employment, the appellant was earning ₹2,400/- per month. Surprisingly, the Tribunal ignored the fact that the appellant was a bright student who could have got an attractive employment after his education. The Tribunal fixed the appellant's notional monthly income as ₹1,250/- and proceeded to compute compensation on that basis. This has seriously affected the final award of compensation given by the Tribunal. 7. The learned counsel for the appellant relied on the judgments in _**V. Mekala v. M. Malathi and another** [(2014) 11 SCC 178]_ , _**Jagdish v. Mohan and others** [2018 (3) SCALE 615]_ and _**Ankur Kapoor v. Oriental Insurance Co. Ltd.** [(2018) 1 SCC 136]_ of the Hon'ble Apex Court and the judgment in _**ICICI Lombard General Insurance Co. Ltd. v. Amith Varghese** [2017 (2) KLT 8]_ of this Court, to urge that when the injured is of tender age or minor and when situation so warrants, a different yardstick should be MACA No.288/2013 : 6 : adopted from that of the structure of compensation formulated in _**Mallikarjun v. National Insurance Co. Ltd.**_ [(2014) 14 SCC 396]. The learned counsel urged that appellant's case is an exceptional one. 8. The learned counsel for the appellant pointed out that rejection of compensation towards artificial limb and denial of compensation towards marriage prospects, by the Tribunal cannot be justified on any count. The Tribunal granted a very meager amount of ₹20,000/- towards compensation for pain and suffering. The compensation awarded by the Tribunal is only a pittance. Under no circumstances, the compensation can be described as just compensation. 9. Learned Standing Counsel for the respondent on the other hand, pointed out that the accident is of the year 2008 and the amount of compensation has to be weighed taking into account the fact that the accident occurred more than a decade ago. It has come out in evidence that, in MACA No.288/2013 : 7 : spite of amputation of right arm, the appellant is pursuing his studies and he is leading a normal life. This is not a case where the injured has become totally unfit to do any avocation. In spite of the amputation of the right arm, the appellant can lead a normal life. The judgments relied on by the counsel for the appellant are distinguishable on facts. The Tribunal has considered all aspects of the case while awarding compensation and a revisit to the Award is unwarranted, contended the Standing Counsel for the respondent. 10. I have heard learned counsel for the appellant and the learned Standing Counsel for the respondent. 11. In _**Mallikarjun** (supra)_ , the Hon'ble Apex Court laid down the principles regarding payment of compensation for injuries sustained by children resulting in permanent disability, in normal circumstances. In the judgment in _**ICICI Lombard General Insurance Co. Ltd.** (supra)_ , a Division Bench of this Court held that in exceptional circumstances a MACA No.288/2013 : 8 : different yardstick can be adopted. The afore judgment of the Division Bench related to an accident in which right leg of a minor aged three years was amputated resulting in 50% permanent disability. In the case in hand, the age of the appellant at the time of accident, his academic and extra curricular school records, the amputation of a limb and the high degree of functional disability arising therefrom, makes the case exceptional and hence a different yardstick has to be adopted. 12. The appellant was 15 years old when the accident occurred in the year 2008. He was pursuing his Plus One course. The appellant could have carried out any manual work and opt for any manual job when he becomes a major, but for the accident. The appellant, in fact, attained majority during the pendency of the OP(MV). The notional income of the appellant therefore should have been fixed with some reference to the minimum income an able-bodied male would have earned. The Hon'ble Apex Court has held MACA No.288/2013 : 9 : in _**Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [(2011) 13 SCC 236]_ that a manual labourer without any proof of income should be taken as having a monthly income of ₹4,500/- in the year 2004. In _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ , the apex Court held that a self-employed person could be taken to earn ₹6,500/- per month, in the year 2006, and the notional monthly income should be taken as ₹6,500/-. While calculating the compensation payable to the appellant herein who was a student at the time of the accident, the Tribunal ought to have taken into account the afore judgments of the apex Court. 13. The evidence on record would show that the appellant has been a very good student and obtained more than 60% marks in 10[th] standard and 70% marks in Plus Two examination. The appellant was pursuing his studies even at the time of the passing of the Award. Before the MACA No.288/2013 : 10 : accident, the appellant was also very active in his extra curricular activities in School, it has come out in evidence. Taking into account the educational and extra-curricular record of the appellant, this Court has no doubt that the appellant would have earned much more than ₹6,500/- once he completes his education. Therefore, for the purpose of determining compensation towards future loss of income, the notional monthly income of the appellant, on a modest estimate, is liable to be fixed at ₹6,500/-. 14. The Tribunal has granted ₹7,500/- towards compensation for loss of earning, treating the period of loss as six months. As the notional income of the appellant is to be fixed as ₹6,500/-, the appellant will be eligible to ₹39,000/- towards loss of earning. Deducting ₹7,500/already awarded by the Tribunal, the appellant will be entitled to an additional compensation of **₹31,500/-.** 15. The Tribunal granted ₹1,000/- towards bystander's expenses as against the claim of the appellant, MACA No.288/2013 : 11 : of ₹5,000/-. The bystander's expenses was given only for a period of ten days. For the year 2008, the bystander's expenses ought to have been paid at the rate of ₹200/-. Accordingly, the appellant will be entitled to ₹2,000/towards bystander's expenses and additional compensation due to the appellant will be **₹1,000/-** . Similarly, towards extra nourishment, the Tribunal has awarded ₹1,000/-. Taking into account the fact that the accident was in 2008, the Tribunal ought to have awarded ₹1,500/- towards extra nourishment. The appellant will be entitled to an additional compensation of **₹500/-** . Similarly, for compensation towards damage to clothing, the appellant was paid only ₹500/- which is on a lower side. Accordingly, the appellant will be entitled to an additional compensation of **₹500/-** under this head. 16. As the monthly income of the appellant is taken as ₹6,500/-, adding 40% towards future prospects, the notional monthly income will be ₹9,100/-. The compensation MACA No.288/2013 : 12 : towards permanent disability payable to the appellant should therefore be revised to ₹9,82,800/- (₹9,100 x 12 x 18 x 50/100). Since the Tribunal has already awarded ₹1,35,000/- under this head, the additional compensation towards permanent disability due to the appellant will be **₹8,47,800/-** . 17. The appellant was a minor at the time of accident. The appellant had sustained altered sensorium, restless, bilateral black eye, lacerated wounds on right knee, compound fracture right upper arm, traumatic partial amputation of the right arm middle third, traumatic subarachinoid hemorrhage and fractures of right sphenoid and maxilla. Taking into account the course of treatment and the unfortunate amputation of right arm of the appellant, this Court is of the opinion that the compensation of ₹20,000/- granted by the Tribunal towards pain and suffering is too meager. Therefore, it is held that the appellant will be entitled to compensation of ₹1,00,000/- MACA No.288/2013 : 13 : towards pain and suffering. Adjusting ₹20,000/- already granted by the Tribunal, the additional compensation for pain and suffering, to which the appellant is entitled to, would be **₹80,000/-** . 18. It is to be noted that the permanent disability and amputation of right arm, would undoubtedly affect the marriage prospect of the appellant, therefore the appellant should be held eligible for an amount of **₹1,00,000/-** towards compensation for diminution of marriage prospects. 19. Accordingly, the appellant is held to be entitled to **₹10,61,300/-** as additional compensation under the following heads:- - (i) Additional compensation towards permanent ₹8,47,800/disability ((₹9,100 x 12 x 18 x 50/100) minus ₹1,35,000/- already awarded by the Tribunal) - (ii) Additional compensation towards loss of ₹31,500/earning (₹39,000/- minus ₹7,500/- already awarded by the Tribunal) - (iii) Additional compensation towards bystander's ₹1,000/expenses (₹2,000/- minus ₹1,000/- already awarded by the Tribunal) MACA No.288/2013 : 14 : - (iv) Additional compensation towards extra ₹500/nourishment (₹1,500/- minus ₹1,000/- already awarded by the Tribunal) - (v) Additional compensation towards damage to ₹500/clothing - (vi) Additional compensation towards pain and ₹80,000/suffering (₹1,00,000/- minus ₹20,000/already awarded by the Tribunal) - (vii) Compensation for diminution of marriage ₹1,00,000/prospects **Total** ## **₹10,61,300/-** The additional compensation will also carry interest at the rate of 7.5% from the date of the OP(MV). The respondent is directed to pay the additional compensation of **₹10,61,300/-** along with interest, to the appellant within a period of one month. The appeal is partly allowed. Sd/- ## **N. NAGARESH, JUDGE** aks/15/06/2020