Muhammed Abdul Jamiah v. Haris, K.G. Prasad Kumar and The New India Assurance Company

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE M.R.ANITHA`** ``` WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 MACA NO. 1597 OF 2013 ``` ``` APPEAL FILED AGAINST THE AWARD DATED 23.11.2012 PASSED IN OPMV 472/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA, WAYANAD ``` ## **`APPELLANT/PETITIONER:`** ``` MUHAMMED ABDUL JAMIAH S/O.USMAN,MANNANKANDY HOUSE, NALLOORNAD POST, MANANTHAVADY TALUK, WAYANAD DISTRICT. ``` ## **`BY ADV SRI.ABRAHAM MATHEW (VETTOOR)`** ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`HARIS`**| |---|---| ||**`AGE NOT KNOWN ,S/O.MOIDU, PATHIYARAKKAL HOUSE,`**| ||**`KUZHINILAM, MANANTHAVADY TALUK, WAYANAD DISTRICT`**| ||**`(DRIVER OF THE AUTORICKSHAW NO.KL 12A/4042)`**| ||**`DL NO.795/97,PIN 678 032`**| |**`2`**|**`K.G.PRASAD KUMAR`**| ||**`AGE NOT KNOWN, S/O.GIVINDANASSARI,`**| ||**`KAVINGAL HOUSE, KANIYARAM,MANANTHAVADY TALUK,`**| ||**`WAYANAD DISTRICT (OWNER OF THE AUTORICKSHAW NO.KL`**| ||**`12A/4042) PIN 678 032`**| |**`3`**|**`THE NEW INDIA ASSURANCE COMPANY`**| ||**`KALPETTA,(POLICY NO.NOT KNOWN)PIN 673 121.`**| ||**`BY ADV LAL K.JOSEPH - R3`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1597 OF 2013 ``` ``` 2 ``` ## **JUDGMENT** This appeal has been filed against the award dated 23.11.2012 in O.P.(MV) No. 472/2000 on the file of the Motor Accidents Claims Tribunal, Kalpetta, Wayanad. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) for the injury sustained by the minor boy aged 12 years in a motor accident. 2. The incident happened on 16.06.2000 at about 12.00 noon. While he was travelling in an autorikshaw bearing Registration No. KL 12A/4042 from Kannothamala to Mananthavady. It is alleged that accident happened due to the rash and negligent driving of the autorikshaw by the 1st respondent. The 2nd respondent is the owner of the offending vehicle and the 3rd respondent is the insurer. A total compensation of Rs.1,70,000/- has been claimed. 3. Before the Tribunal, the 1st and 2nd respondents remained ex-parte. 4. The 3rd respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle involved in the accident; however, denied negligence alleged against the driver of the vehicle. It is contended that ``` MACA NO. 1597 OF 2013 ``` ``` 3 ``` there is a violation of policy conditions, since the 1st respondent was not having a valid driving license at the time of accident. The compensation claimed under various heads are also challenged. 5. Minor was examined as PW1. Exts.A1 to A5 and A6 series were marked from the side of the appellant. There was no oral evidence from either side. 6. The Tribunal on evaluating the pleadings and materials on record, awarded a total compensation of Rs.57,850/-. It is also found that the accident happened due to the rash and negligence driving of the 1st respondent. Respondent Nos. 1 to 3 were held jointly and severally liable and 3rd respondent is directed to make good the loss of stated by the 2nd respondent. 7. In this case, the compensation awarded by the ## Tribunal under various heads are as follows: |Compensation allowed at<br>diferent heads|Amount awarded<br>Rs.| |---|---| |Income/Notional income|1,000/-| |Medical and Miscellaneous<br>expenses|42,500/-| |Bystander expenses|250/-| |Transportation expenses|500/-| |Extra nourishment|400/-| ``` MACA NO. 1597 OF 2013 ``` ``` 4 ``` |Compensation allowed at<br>diferent heads|Amount awarded<br>Rs.| |---|---| |Damage to clothing|200/-| |Pain and sufering|5,000/-| |Permanent disability|9,000/-| |**Total**|**57,850/-**| 8. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in appeal. nd 9. Notice to the 2 respondent is dispensed with at the risk of the appellant. 10. Heard the learned counsel for the appellant and Sri. Lal K. Joseph, the learned Standing Counsel for the 3rd respondent insurer. Lower court records were called for and perused. 11. According to the learned counsel for the appellant, the victim was a minor boy aged 12 years and he sustained grievous injuries and he had undergone inpatient treatment for 10 days and the disability certificate was issued by Orthopedic Surgeon assessing 10%, disability. Inspite of that Tribunal awarded meager compensation of Rs. 57,850/- only. PW1 deposed about the injury sustained and the treatment undergone by him and he also deposed that due to the ``` MACA NO. 1597 OF 2013 ``` ``` 5 ``` accident and injury he could not study properly and he was put to mental agony. 12. The injury sustained by the claimant as per Ext.A2 wound certificate is Abrasion over postro medial aspect of the left knee 5X3 cm, effusion left knee, swelling left knee and upper 1/3 left leg, tenderness and swelling left clavicle, abrasion 8X5 cm in front of left shoulder and X ray showed fracture to the left clavicle and tibial spine. He was admitted on 17.06.2000 and discharged on 26.06.2000 at Fathima Mission Hospital. Ext. A5 is the disability certificate issued by the Proffessor and Head of Department of Orthopedic, Medical College Hospital, Kozhikode certifying 10% permanent disability. However, the Tribunal taken 5%, disability Ext.A3 certificate also does not certify that 10% permanent disability is whole body. Injury sustained by the claimant is fracture of clavicle as well as fracture of tibial spine. Hence permanent whole body disability taken by the tribunal as 5% is seems to be reasonable and it can be approved. 13. In the present case, the claimant is minor boy aged 12 years. In **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited & Another :** ``` MACA NO. 1597 OF 2013 ``` ``` 6 ``` **2013 ACJ 2445** a two Judge Bench of the Apex Court decided the compensation to be awarded in the case of minor aged 5 years. In para No.8 the Apex Court quoted **R.D.Hattangadi v. Pest Control (India) Pvt.Ltd. : 1995 (1) SCC 511** wherein while assessing non-pecuniary damages, the for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports and damages on account of inconvenience, hardship, discomfort, disappointment, frustration etc. have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. So, while considering the claim of victim child, it would be unfair and improper to follow the structured formula in the Second Schedule of the Motor Vehicles Act. The main stress in the formula is on technical damages. For children there is no income. The only indication in the Second Schedule for non-earning person is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked under non-pecuniary heads in addition to the actual amount incurred for treatment and or to ``` MACA NO. 1597 OF 2013 ``` ``` 7 ``` be done, transportation, assistance of attendant etc. The main element of damages in the case of child victims are pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. Apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation etc. 14. The Apex Court further quoted **Sapna v. United India Insurance Co.Ltd., 2008 (7) SCC 613** , wherein in the case of a 12 year old girl who suffered 90% disability in her left limb, the court granted lump sum amount of Rs.2,00,000/- on these heads. In **Irana v. Mohammadali Khadarsab Mulla and Another 2004 ACJ 1396** , a Division Bench of Karnataka High Court granted an amount of Rs.4,00,000/- on these heads to the child who suffered 80% permanent disability. 15. Evaluating the above principles in **Mallikarjun’s case** (Supra) Apex Court held that though it is difficult to have ``` MACA NO. 1597 OF 2013 ``` ``` 8 ``` an accurate assessment of the compensation in the case of children suffering disability on account of motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, 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 upto 30% to the whole body Rs. 3 lakhs; upto 60% Rs.4lakhs; upto 90% Rs.5 lakhs and above 90% it should be 6 lakhs. For permanent disability upto 10% it should be Rs.1 lakh, unless there are special circumstances for taking a different yardstick. 16. In this case the disability of the minor boy is below 10%. So accepting the principles laid down in **Mallikarjun’s case** (Supra) the claimant minor in this case also entitled to get Rs. 1,00,000/- towards permanent disability, pain and suffering, attendant expense etc. So the amount already awarded, ie. Rs.5,000/- towards pain and suffering, Rs.9,000/- towards partial permanent disability and Rs.250/- towards bystander expenses awarded to be deducted. That will come to Rs.14,250/-. The balance amount would be Rs.1,00,00014,250= **Rs.85,750/-** . ``` MACA NO. 1597 OF 2013 ``` ``` 9 ``` 17. Accident is of the year 2000. A just and reasonable compensation has been awarded on all other heads and no enhancement is required under any other heads. 18. So the total enhanced compensation would be Rs.85,750 **(Rupees Eighty five thousand seven hundred and fifty only).** The claimant is entitled for interest at the rate of 7.5% p.a from the date of application till realization. 19. In the result, the appeal is allowed, appellant is allowed to realise enhanced compensation of Rs.85,750 **(Rupees Eighty five thousand seven hundred and fifty only)** in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition. The 3rd respondent is directed to pay the additional compensation granted in this appeal, together with interest, deducting the amount towards balance court fee within a period of two months from the date of receipt of certified copy of this judgment. 20. The appellant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the ``` MACA NO. 1597 OF 2013 ``` ``` 10 ``` insurer, within one month from the date of receipt of certified copy of this judgment. **==> picture [53 x 46] intentionally omitted <==** Sd/- **M.R.ANITHA JUDGE** ``` LU ```