Muhammed Shahin (Minor) v. Branch Manager, The New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 27TH DAY OF JULY 2017/5TH SRAVANA, 1939 MACA.No. 1413 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 524/2003 of MACT,KALPETTA DATED 30-06-2008 APPELLANT(S)/PETITIONER: ----------------------- MUHAMMED SHAHIN (MINOR), AGED 16 YEARS, REP. BY NEXT FRIEND AND GUARDIAN, FATHER, N.T.ASHRAF, AGED 40 YEARS, S/O.ALI,, NELLATUTHODIKA HOUSE, NEAR GOVERNMENT HOSPITAL, MEPPADI POST, MEPPADI, KOTTAPPADY AMSOM DESOM,, VYTHIRI TALUK BY ADV. SMT.CELINE JOSEPH RESPONDENT(S):RESPONDENT NO.3 --------------------------------------- THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, M.G.T.BUILDINGS, KALPETTA NORTH, WAYANAD, (INSURER OF THE VEHICLE BEARING NO.KL10A/1174 MOTORCYCLE). BY ADV. SRI.A.A.ZIYAD RAHMAN BY ADV. SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.1413 OF 2011 ==========================** Dated this the 27[th] day of July, 2017 ## **JUDGMENT** _Anil K. Narendran, J._ This appeal arises out the award passed by the Motor Accidents Claims Tribunal, Kalpetta dated 30.6.2008 in O.P.(MV).No.524 of 2003, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the appellant/claimant, a minor aged 8 years represented by his father, claiming compensation on account of the injuries sustained by him in a motor accident occurred on 11.10.2003 while he was walking along the side of a public road. When he reached the place of accident, he was knocked down by a motor cycle bearing Reg.No.KL-10/A-1174 ridden and owned by respondents 1 and 2 and insured with the third respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the motor cycle by the **M.A.C.A.1413/2011** 2 first respondent rider, claim petition was filed before the Tribunal, claiming a total compensation of Rs.2,00,000/- under different heads. 2. Before the Tribunal, PW1 was examined and Exts.A1 to A6 were marked on the side of the appellant/claimant. Ext.C1 is the disability certificate issued by the District Medical Board. Respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal held that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent rider. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.24,200/- and directed third respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 6% per annum from the date of the petition till realisation. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before **M.A.C.A.1413/2011** 3 this Court in this appeal. 5. We heard the arguments of the learned counsel for the appellant/claimant and also the learned counsel for the third respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2003 and at the time of accident, the appellant/claimant was a minor aged 8 years. The injuries sustained by him, as borne out from Ext.A3 wound certificate, are as follows; “Lacerated wound 3x1 cm over right shoulder, swelling and abrasion of right arm C deformity, swelling and deformity of right thigh, multiple abrasions on face and forehead and swelling of forehead.” Due to the injuries sustained in the accident, he had undergone inpatient treatment for a period of 18 days, which fact is not in dispute. Ext.C1 is the disability certificate issued by the Medical Board in which the percentage of disability is certified as 4%. **M.A.C.A.1413/2011** 4 ## 8. The compensation awarded by the Tribunal under different heads reads thus:- |**_Name of head_**|**_Compensation awarded_**| |---|---| |Disability|9,000/-| |Transportation to hospital|500/-| |Extra nourishment|1,000/-| |Damage to clothingand articles|200/-| |Bystander's expenses|500/-| |Medical expenses|7,000/-| |Pain and suffering|6,000/-| |Total|24,200/-| 9. Considering the fact that the appellant/claimant was a minor aged 8 years, the Tribunal took the monthly income notionally at Rs.1,250/- for the purpose of assessing disability compensation. Applying the multiplier of '15' and the percentage of disability as 4%, the Tribunal awarded a sum of Rs.9,000/- (1250x15x4/100) under the said head. 10. In **Master Mallikarjun v. Divisional Manager, The National Insurance Co.Ltd & Anr.[AIR 2014 SC 736]** , the Apex Court held as follows:- - “12. Though it is difficult to have an accurate assessment of the **M.A.C.A.1413/2011** 5 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 up to 30% to the whole body, Rs.3 lakhs; upto 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 Re.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. The appellant, hence, would be entitled to get the compensation as follows:- |**HEAD**|**COMPENSATION**<br>**AMOUNT**| |---|---| |Pain and suffering already undergone<br>and to be suffered in future, mental<br>and physical shock, hardship,<br>inconvenience, and discomforts etc.,<br>and loss of amenities in life on<br>account ofpermanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss<br>of earnings to the parents during the<br>period of hospitalisation.|Rs.25,000/-| |Medical and incidental expenses<br>during the period of hospitalisation<br>for 58 days|Rs.25,000/-| |Future medical expenses for<br>correction of the mal union of<br>fracture and incidental expenses for<br>such treatment.|Rs.25,000/-| **M.A.C.A.1413/2011** 6 |**HEAD**|**COMPENSATION**<br>**AMOUNT**| |---|---| |TOTAL|Rs.3,75,000/-| 11. In the instant case, the appellant/claimant sustained a permanent disability of 4% as certified in Ext.C1. Applying the principles laid down by the Apex Court in **Mallikarjun's case (supra)** , we find that he is entitled for a sum of **Rs.1,00,000/-** towards pain and suffering, discomforts and loss of amenities in life on account of the permanent disability. Considering the hospitalisation for a period of 18 days, he will be entitled for a sum of **Rs.10,000/-** towards discomfort, inconvenience and loss of earning for the parents during the period of hospitalisation. Considering the fact that he had spent nearly Rs.7,000/- towards medical bills, we deem it appropriate to grant a sum of **Rs.15,000/-** towards medical and incidental expenses during the period of hospitalisation. 12. In the result, the total compensation payable is re-fixed as **Rs.1,25,000/-** (1,00,000+10,000+15,000). Since the Tribunal has already awarded a sum of Rs.24,200/-, the appellant/claimant will be entitled to an additional compensation of **Rs.1,00,800/-** in this **M.A.C.A.1413/2011** 7 appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation, excluding the delay of 1017 days in filing this appeal, which was condoned as per order dated 28.11.2011, on condition that in case enhanced compensation is granted, the appellant/claimant will not be entitled for interest for the said period of delay. 13. Since insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1413/2011** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.1413/2011** 9 **JUDGMENT September, 2010**