MUHAMMED RISHDHAN (MINOR) vs NEW INDIA ASSURANCE CO. LTD.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` MACA NO. 123 OF 2023 ``` ``` AGAINST THE AWARD DATED 18.04.2022 IN OPMV NO.1743 OF 2018 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE APPELLANT/PETITIONER: ``` ``` MUHAMMED RISHDHAN (MINOR) AGED 16 YEARS REP. BY FATHER AND NEXT FRIEND RAFEEQUE, S/O. ABU. K. C, AGED 44 YEARS, KAYYUTHICHALIL, MYSOOREMALA, KODIYATHUR, MUKKAM, KOZHIKODE, PIN - 673 602. BY ADVS.AVM.SALAHUDIN A.D.DIVYA ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE NEW INDIA ASSURANCE CO. LTD. CITY BRANCH NO. 1, CALICUT, 2ND FLOOR, FAIR MOUNT BUILDING, ERANHIPALAM, WAYANAD ROAD, KOZHIKODE - 673 006, REPRESENTED BY ITS BRANCH MANAGER. ``` ``` BY ADVS.M.MEENA JOHN VIJU THOMAS(K/35/1985) MIKHIYA ANNA VIJU(K/000740/2019) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2023, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING: ``` M.A.C.A. No. 123 of 2023 ## -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 123 of 2023 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of March, 2024 ## **JUDGMENT** The appeal on hand is directed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 18.04.2022 in OP(MV) No.1743/2018. Appellant is the petitioner before the Tribunal who was a minor boy aged 12 years at the relevant time of the motor accident. Being minor at the relevant time, he was represented by his father as next friend in the Original Petition seeking compensation filed as above. 2. As per the averments in the Original Petition, at about 3.30.p.m. on 30.05.2018 while the minor boy was walking through the extreme western margin of Muringappara-Karamull Road, a car bearing registration No.KL-18G-8887 knocked him down at Kuttiparamba of Kumaranelloor, due to the rash and M.A.C.A. No. 123 of 2023 -:3:- negligent driving by its driver and thereby he sustained serious injuries. He was rushed to a hospital where he was treated both as inpatient and outpatient. The motor accident was allegedly occurred due to the rash and negligent driving of the car by its driver who was arrayed as the 2[nd] respondent in the Original Petition. The registered owner and the insurer of the offending vehicle were also arrayed as respondents 1 and 3 in the Original Petition. A sum of `6,00,000/- was also claimed as compensation and respondents 1 to 3 were alleged as jointly and severally liable to pay the same. 3. All respondents were served with notice. 1[st] and 2[nd] respondents abstained from contesting the Original Petition and therefore were declared as _ex parte_ . 3[rd] respondent/insurer appeared before the Tribunal in response to the notice served on them and filed written statement admitting insurance coverage for the car under the certificate of insurance issued by them. The Original Petition was contended as not maintainable and the compensation as excessive and devoid of any basis. Negligence alleged against the 2[nd] respondent was also denied and it was M.A.C.A. No. 123 of 2023 -:4:- sought to be attributed to the minor boy. The age of the minor boy and the claims of his father regarding the injuries sustained and the disability suffered by him were also disputed. 4. Exts.A1 to A10 and C1 were marked on the side of the petitioner. On appreciation of the above evidence, the Tribunal found the 2[nd] respondent, who was driving the car at the relevant time, responsible for causing the motor accident by his rash and negligent driving. The Tribunal calculated the compensation payable in favour of the petitioner and arrived at `3,20,500/-. The 3[rd] respondent, insurer of the offending vehicle was directed by the Tribunal to pay the above sum with interest at the rate of 8% per annum from the date of filing of the Original Petition, till the date of realisation. Proportionate costs was also ordered to be realised. 5. Aggrieved by the quantum of compensation stood awarded by the Tribunal, the appeal on hand is filed by the minor boy, the injured in the motor accident himself after attaining the age of majority. The first and foremost contention of Adv.A.V.M. Salahuddeen, the learned counsel was that the appellant had ## M.A.C.A. No. 123 of 2023 -:5:- sustained serious injuries in the motor accident and the compensation stood awarded is not proportionate to those and adequate. According to him, the Tribunal failed to provide ample opportunity to the petitioner to prove that his son on account of the vision impairment caused to him in the motor accident is 100% disabled functionally. According to him, in spite of serious injuries sustained by the petitioner, the Tribunal failed to award reasonable compensation towards pain and sufferings, loss of amenities and enjoyments in life and loss of studies. According to him, the Tribunal is highly unjustified in not awarding compensation towards future treatment expenses and awarding only inadequate sums as compensation towards bystander expenses and extra nourishment. It was urged by the learned counsel that the Tribunal ought to have granted interest at the rate of 12% for the compensation arrived at instead of 8% stood ordered by it. 6. The learned counsel has relied on **T.V. Ameen(Minor),** **represented by his father/guardian T.V.Abbas v. V. Anoop & Others** (CDJ 2023 Ker HC 758); **Rajendra Singh and Others** M.A.C.A. No. 123 of 2023 -:6:- **v. National Insurance Company Ltd. And Others** (2020 KHC 6427) and **Meena Devi v. Nunu Chand Mahto @ Nemchand Mahto and Others** (2022 KHC 7080) and **Master Mallikarjun v. Divisional Manager, The National Insurance Co.Ltd. And Another** (2013 KHC 4670) to fortify the conentions raised as above. 7. In **T.V.Ameen** supra a learned Single Judge of this Court opted to calculate compensation for permanent disability by adopting the multiplier method instead of following the dictum of the Apex Court in **Master Mallikarjun** supra. According to the learned counsel, since the compensation payable on the basis of **Master Mallikarjun** supra was found too meagre and inadequate that the learned Single Judge opted for a calculation of compensation resorting to the multiplier method. 8. According to the learned counsel, the Apex Court in **Master Mallikarjun** supra has provided for exercise of an option in that regard. The learned counsel has specifically relied on paragraph 12 of **Master Mallikarjun** supra to rest the contention taken as above. In the above backdrop paragraph 12 M.A.C.A. No. 123 of 2023 -:7:- of **Master Mallikarjun** supra is extracted hereunder to have an idea about the circumstances under which an option can be exercised by a Tribunal to adopt a different yardstick in the matter of calculation of compensation in the case of minor victims of motor accidents: “12. 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 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 upto 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 upto 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents.” (Emphasis supplied) 9. In paragrph 12 extracted above from **Master Mallikarjun** supra this Court is unable to find issuance of a general direction by the Apex Court in the matter of adoption of a M.A.C.A. No. 123 of 2023 -:8:- different yardstick. It is clear from the portion emphasized above that a different yardstick can be given only in respect of minor victims of a motor accident who have suffered permanent disability only upto 10%. The dictum of the Apex Court in **Master Mallikarjun** supra is mandatory to be followed in all cases other than the one in which the minor victim was established as suffered permanent disability above 10%. In cases of that nature, the Apex Court has given an option either to follow the dictum in **Master Mallikarjun** supra in the matter of awarding compensation or else to adopt a different yardstick for calculation of compensation when exceptional circumstances exist warranting that. 10. It is true that in **T.V.Ameen** supra, a different yardstick was adopted by a learned Single Judge in the case of a minor boy aged 14 years, who had sustained serious injuries in a motor accident. It is pertinent to note that the minor boy in that case was certified to have suffered 2% permanent disability. The injuries sustained by him were described in the judgment of the learned Single Judge and are extracted hereunder : M.A.C.A. No. 123 of 2023 -:9:- “Right frontal extra dural haematoma and contusion, SAH right frontal region, SDH in right fronto temporal region, extra axial haematoma in right frontal region, mid line shift left side, mild diffused cerebral oedema, fracture frontal bone on right side with buckling, haemo sinus laceration over right scalp 3 x3 cm, laceration over left eye brow 1 x 1 cm, cut injury upper lip measuring 5x5 cm, multiple laceration over tongue, loss of upper central incisor, fracture of upper right lateral incisor, fracture obliquely lower left lateral incisor and canine teeth” (sic.) 11. Despite the factum that the minor boy suffered serious injuries as above, had undergone several procedures of treatment and also for a prolonged period, the permanent disability suffered was assessed only as 2%. Going by the dictum in **Master Mallikarjun** supra, only a victim of the motor accident who suffered permanent disability below 10%, is entitled to get compensation to the tune of `1,00,000/- fixed by the Apex Court. Since he has sustained serious injuries in the motor accident and had undergone treatment for a long duration and also underwent several procedures of treatment, if compensation was calculated by adopting the normal method of calculation, he would undoubtedly get a reasonably higher sum M.A.C.A. No. 123 of 2023 -:10:- as compensation separately under the heads pain and sufferings and loss of amenities and enjoyments in life. There is even a chance for him to get a hike in the compensation payable towards permanent disability. These were the exceptional circumstances that prompted the learned Single Judge to opt for a yardstick of calculation different from that adopted by the Apex Court in **Master Mallikarjun** supra. The learned Single Judge is fully justified in opting to calculate the compensation by adopting a different yardstick in **T.V.Ameen** supra. In the case on hand, the minor victim sustained only the following injuries. _1. Headache & Impaired Vision of right Eye,_ _2. Abrasion over right Temporal Region,_ _3. Traumatic Optic Neuropathy and_ _4. Cerebral concussion._ 12. The injuries above mentioned are not that much serious. The victim was primarily admitted at KMCT Medical College Hospital, Kozhikode and was treated there as inpatient from 30.05.2018 till 02.06.2018. Treatment was also continued thereafter as outpatient. The Medical Board after examining him ## M.A.C.A. No. 123 of 2023 -:11:- had issued a certificate where his permanent disability was certified as 30%, which is marked in evidence as Ext.C1. Though the victim boy has taken a contention that he had suffered 100% occupational disability, this Court finds that evidence is totally lacking to reach such a conclusion. The contention of the learned counsel that opportunity was not granted by the Tribunal to establish the occupational disability as 100% is found to be devoid of basis when viewed in the backdrop of the proceedings sheet of the Tribunal as well as the records of the Original Petition. The nature of injuries sustained by him are also not that much serious in nature. However, on account of the impairment of vision that his permanent disability was assessed as 30% by the Medical Board after examining him. The permanent disability assessed being 30%, the dictum in **Master Mallikarjun** supra will not permit this Court to exercise the option to adopt a different yardstick of calculation of compensation for disability than that was adopted there. Moreover in view of the injuries sustained by the victim in the motor accident and the treatment for a very short term M.A.C.A. No. 123 of 2023 -:12:- undergone by him following that, exceptional circumstances warranting to adopt a different mode of calculation are not found existing in the case on hand. It is found from the impugned award that compensation has been reasonably awarded by the Tribunal even under the pecuniary heads. 13. In the light of the discussion hereinabove made, this Court finds that the argument advanced by the learned counsel on behalf of the petitioner to adopt a different yardstick of calculation is only to be discarded being untenable. The dictum in **T.V.Ameen** supra relied on by the learned counsel cannot be followed in the case on hand since the facts involved there and those in the case on hand are distinguished as above. Compensation was awarded by the Tribunal correctly in the case on hand and therefore interference is totally unwarranted. Learned counsel also canvassed for opting to fix interest at the rate of 12% for the compensation payable, replacing 8% adopted by the Tribunal. This Court is declined to do so for the reason that only low rate of interest was applicable at the relevant time. M.A.C.A. No. 123 of 2023 -:13:- Interest fixed at the rate 8% being reasonable for the period under consideration is maintained. Appeal fails for the reasons and is dismissed. Sd/- **MARY JOSEPH JUDGE** ttb