Mukthar Javid M.I. (Minor) S/O Ismail Hajee & Subaida W/O Ismail vs Abdul Khareem E., Kunhikelu Nair & The Manager, 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** **MONDAY, THE 31ST DAY OF JULY 2017/9TH SRAVANA, 1939** **MACA.No. 126 of 2010 ( ) -------------------------** **AGAINST THE AWARD IN OPMV 541/2006 MACT,KASARAGOD DATED 10-09-2009** **APPELLANT(S)/PETITIONERS::** **-------------------------** **1. MUKTHAR JAVID M.I. (MINOR) S/O.ISMAIL HAJEE.** ## **2. SUBAIDA, W/O.ISMAIL,** **R/AT JAVID MANZIL, MADHUR,, POST MADHUR, KASARAGOD., (1ST APPELLANT IS MINOR-REPRESENTED BY HIS NEXT FRIEND MOTHER GUARDIAN AS 2ND APPELLANT).** **BY ADVS.SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH** ## **RESPONDENT(S):/RESPONDENTS** **--------------** ## **1. ABDUL KHAREEM.E.** - **S/O.ABDUL KHADER, EDAMCHAL HOUSE, POST SHANKARAMPADY, VIA.CHENGALA, KASARAGOD DISTRICT.** **2. SRI.KUNHIKELU NAIR, S/O.KUNHIKANNAN NAIR, ASHOK NAGAR, PADIL, PUTTUR, KARNATAKA STATE.** ## **3. THE MANAGER,** - **NEW INDIA ASSURANCE COMPANY LTD., GOKUL BUILDING, M.G.ROAD, KASARAGOD.** **R3 BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** jg-27/11 ## C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. .................................................................... MACA No.126 of 2010 .................................................................... Dated this the 31[st] day of July, 2017. ## J U D G M E N T ## Ravikumar, J. This appeal is directed against the award dated 10.09.2009 passed by the Motor Accidents Claims Tribunal, Kasaragod in OP(MV) No.541/2006. The first appellant/first petitioner is the son of the second appellant/second petitioner. The aforesaid claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 seeking a compensation of `4,00,000/- for the injury sustained by the first petitioner/first appellant in a motor accident. The accident, which constrained the first petitioner to file the claim petition through his mother and guardian, the second appellant, had occurred on 30.03.2006 at about 1 p.m. He was travelling along with members of his family in the autorickshaw bearing Reg.No.KL-14/C-7306. The jeep bearing Reg.No..KA-21/M-3434, driven by the first respondent, dashed against the said autorickshaw at the place of occurrence. Consequently, it capsized. The first appellant/first petitioner sustained severe injuries. He was immediately taken to Unity Health Complex, Mangalore. He remained there as an inpatient for a period of 21 days. The injuries resulted in permanent disability. Before the MACA 126/10 -2- Tribunal, no oral evidence was adduced by both sides and no documentary evidence was also adduced by the respondents. On the side of the appellants, Exts.A1 to A5 were got marked. Ext.X1 is a court document and it is the disability certificate issued by the District Medical Board, Kanhangad. The Tribunal awarded a total compensation of `1,96,500/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization. The appellants/petitioners seek enhancement of the compensation. 2. We have heard the learned counsel for the appellants/petitioners and also the learned counsel appearing for the third respondent insurer. 3. In view of the absence of any dispute regarding the accident, cause of the accident and also the liability of the third respondent insurer to indemnify the insured owner of the offending vehicle-jeep, the only question to be decided is whether or not the first appellant/first petitioner is entitled to get enhanced compensation. At the very outset, we may say that, in fact, there was no need for the second appellant/second petitioner to join the claim petition in her individual capacity and the claim petition ought to have been filed for and on behalf of the first appellant/first petitioner by her in representative capacity. However, we do not think it necessary to make any further comment upon the said aspect, at this distance of MACA 126/10 -3- time. At the time of the accident, the first appellant/first petitioner was aged only 12 years and he was then studying in 7[th] standard in – T.I.H.S., Nayanmarmoola (sic: Nayamarmoola). Going by Ext.A3 wound certificate, the first appellant/first petitioner sustained the following injuries: “Laceration right forehead and temple with cerebral concussion (concessional head injury), laceration left arm with fracture arm bone (Olecrenon), laceration left face.” 4. As noticed hereinbefore, first appellant/first petitioner had been an inpatient for 21 days in the hospital. Going by Ext.X1, he had incurred permanent disability of 90% and it pertains to his left upper limb. In Ext.X1 it is certified thus:- “Laceration left arm with fracture olecramon Abrusion left side of face. Now he has got ankyloid left elbow and fractures of median, radial nerve and ulmarnerve injury viz; loss motor and sensory functions of forearm musles and hand muscles with loss of sensation left forearm and hand and ankyloid left shoulder with permanent physical impairement amounting to 90% (Ninety percent) in relation to his left upper limb.” 5. The learned counsel appearing for the appellants/petitioners contended that the Tribunal had failed to grant MACA 126/10 -4- reasonable compensation even after noting that the injuries resulted in 90% permanent disability pertaining to the left upper limb of the first appellant/first petitioner. As per the impugned award, the Tribunal granted only a lump sum amount of `40,000/- as compensation for permanent disability. A perusal of the impugned award would reveal that the Tribunal has granted the said amount under the combined head of compensation for continuing or permanent disability and compensation for loss of earning power. There can be a little doubt with respect to the position that the common ingredient for granting compensation for permanent disability and for loss of earning power is his disability. In such circumstances, when an injured is granted compensation for permanent disability, he cannot be granted compensation for loss of earning power. (See the decision of a Full Bench of this Court in Oriental Insurance Co. Ltd. v. Hariprasad [2005 (4) KLT 977 (FB)]). 6. True that in the case of children, it is difficult to assess the compensation with precision. In other words, a guess work is required, essentially because a child can only be a non-earning person and what he would have ultimately become but for the accident, also cannot be said with precision. This aspect was also duly taken into account by the Hon’ble Apex Court in the decision in Master Mallikarjun v. Divisional Manager, The National Insurance Company MACA 126/10 -5- Limited & Anr. [AIR 2014 SC 736]. In paragraph 12 of the said decision, the Apex Court held thus:- “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 up to 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 up to 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick.” 7. In this case, going by Ext.X1, the permanent disability of the left upper limb of the first appellant is 90%. True that the Medical Board, which issued Ext.X1, had not converted the same into whole body disability. In the decision in Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)] while considering the question as to how loss of earnings should be determined, the Hon’ble Apex Court observed:“the Tribunal may follow the First Schedule to the Workmen’s Compensation Act, 1923, which gives some indication about the extent of permanent disability in different types of injuries, in the case of a workman”. The note under the First Schedule to the Employees MACA 126/10 -6- Compensation Act, 1923 reads thus:- “Complete and permanent loss of the use of any limb or member referred to in the Schedule shall be deemed to be the equivalent of the loss of that limb or member.” 8. Going by the First Schedule, in the case of amputation through shoulder joint, 90% is the loss of earning capacity. We are fully aware of the fact that the Schedule attached to the Employee’s Compensation Act cannot be made applicable while calculating compensation payable to a child who sustained injuries. However, we refer to the Note thereunder only to highlight the fact that when there is permanent loss of use of any limb or member, it is statutorily taken as equivalent to the loss of that limb or member. When a degree of permanent disability is given with respect to a particular limb for granting compensation for permanent disability, necessarily it has to be converted into whole body disability. Taking into account all such circumstances, we are inclined to take, in the light of Ext.X1 and the aforesaid discussion, the permanent whole body disability of the first appellant/first petitioner as 45%. Even if there is any calculation error in the matter of conversion into whole body disability, it would not and could not cause prejudice to both the parties, in the case on hand, in view of the decision in Master Mallikarjun(supra), because as going by MACA 126/10 -7- the said decision, when the disability is between 31% and 60%, the amount payable thereunder is `4,00,000/-. In such circumstances, it can be safely held that the first appellant/first petitioner is entitled to get an amount of `4,00,000/-, taking into account the degree of permanent disability sustained by him owing to the injuries sustained in the accident. Over and above the amount thus fixed, the first appellant/first petitioner is entitled to get compensation under the following heads:Towards medical and incidental expenses during the period of hospitalization, going by the bills, he had incurred an amount of `99,996/-. In fact, the said amount was granted by the Tribunal, going by the impugned award. Taking into account the fact that the child had been an inpatient for a period of 21 days, we are inclined to grant an amount of `15,000/-, considering his discomfort, inconveniences and loss of earnings to the parents during the period of hospitalization. Thus the total amount payable based on such calculation is `5,14,996/-. The Tribunal has already granted an amount of `1,96,500/-. After deducting the said amount, the first appellant is entitled to get an amount of `3,18,496/- (Rupees three lakhs eighteen thousand four hundred and ninety six only) as additional compensation. This additional compensation will carry interest at the rate of 8% per annum from the date of petition till the MACA 126/10 -8- date of realization. In view of the absence of dispute regarding the liability of the third respondent to indemnify the insured owner of the vehicle involved in the accident, the third respondent is directed to deposit the enhanced compensation along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. This appeal is disposed of as above. There will no order as to costs. (C.T.RAVIKUMAR, JUDGE) (ANIL K.NARENDRAN, JUDGE) jg-31/7