IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 MACA.No. 2380 of 2007() ----------------------- OPMV.1897/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- MANU, OMANNIL THUNDIYIL HOUSE, VELLAPPALLI BHAGOM, PAYIPPADU KARA, PAYIPPADU VILLAGE. BY ADV. SRI.K.A.HASHIM RESPONDENT(S): RESPONDENTS -------------------------- 1. BINU SAMUEL, KUZHIYATHU VINU VILLA, NALUNAKKAL BHAGOM, VAKATHANAM KARA, DO. VILLAGE. 2. MATHEW T.GEORGE, THAYYIL HOUSE, MADAPPALLY P.O., CHANGANACHERRY. 3. THE UNITED INDIA INSURANCE CO.LTD., CHANGANACHERRY. ADV. SRI.PMM.NAJEEB KHAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- M.A.C.A. No.2380 of 2007 ------------------------------------------------- Dated this the 9th day of November, 2011 JUDGMENT Basant,J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 18/4/2003. He had suffered fracture of tibia and fibula right in addition to other external injuries. He was an inpatient for a period of 16 days. He was put on plaster for a period of two months. He was a student at the relevant time. He had allegedly suffered physical disability as a result of the accident. The physical disability was assessed by a Medical Officer at the Kottoyam Medical College. 8% is the extent of disability. There was shortening of 1 cm. of the right leg. Right ankle and right knee flexion were impaired. Against a total claim of `1,50,000/-, the Tribunal awarded a total compensation of `49,100/- as per the details given below: 1. Transportation expenses - `1,500/- 2. Damage to clothing - `500/- 3. Extra-nourishment - `1,000/- 4 By-stander's expenses - `3,000/- M.A.C.A. No.2380 of 2007 -: 2 :- 5. Pain and sufferings - `15,000/- 6. Treatment expenses - `8,100/- 7. Permanent dis-disability and loss of amenities together - `20,000/- ------------- Total - `49,100/- ====== 2. We have heard the learned counsel for the appellant/ claimant and the learned counsel for the respondent/insurance company which has been made entirely liable under the impugned award to satisfy the award. Challenge is raised only against the quantum of compensation. 3. Called upon to explain and be specific, the learned counsel for the appellant contends that the Tribunal erred in awarding a global amount of `20,000/- under the composite head of permanent disability and loss of amenities. The Tribunal ought to have assessed the compensation payable for reduction in earning capacity separately by resort to the multiplier- multiplicand method. In addition, compensation must have been awarded for loss of amenities. It is further pointed out that no compensation has been awarded for the retardation in the educational progress of the child during the period of treatment as an inpatient and later as an outpatient. 4. We find the objections raised to be tenable. 8% M.A.C.A. No.2380 of 2007 -: 3 :- disability has been suffered and that is borne out clearly by Ext.A7 disability certificate issued by the doctor at the Medical College. We find no reason not to accept the same. 8% physical disability can, in the absence of any better inputs, safely be assumed to result in reduction in earning capacity of identical extent. The child was aged only 16 years. It had not started earning. But even for a non-earning person, the court has to ascertain the quantum of reduction in earning capacity. Clause (6) of the Second Schedule to the Motor Vehicles Act gives an indication of probable income that can be assumed. `15,000/- has been assumed to be the annual income of the appellant under Clause (6) of the Second Schedule. That presumption was incorporated in 1994. The Schedule has not been updated after 1994 notwithstanding the mandate of Sec.163A(3) of the M.V. Act. We are satisfied, in these circumstances, that it would be absolutely reasonable to assume the probable monthly income at `2,000/-. Taking cue from the Second Schedule, 16 can safely be adopted as the multiplier applicable for children aged 15 to 20 years. 5. The physical disability must certainly have impaired the quality of enjoyment of life. Shortening of 1 cm. and restriction in the flexion of ankle and knee will certainly permanently impair and reduce the quality of enjoyment of life. As a child, the M.A.C.A. No.2380 of 2007 -: 4 :- disability must be deprived the child of opportunity to engage himself in recreational activities, sports, games etc. Taking all the relevant circumstances into account, an appropriate amount of compensation has to be fixed under the head of loss of amenities separately. 6. Retardation of educational progress must certainly have resulted during the period of treatment. For such interruption in the academic progress, the child is certainly entitled to be compensated. 7. The above discussions lead us to the conclusion that the appellant is entitled to the following further amount as compensation in addition to the amount already awarded by the Tribunal: 1. Compensation for retardation in educational progress - `5,000/- 2. Reduction in earning capacity (`2,500/- x 12 x 16 x 8/100 = `38,400/- minus `20,000/-) - `18,400/- 3. Separate compensation under the head of loss of amenities - `25,000/- -------------- Total - `48,400/- ====== 8. We are not persuaded to agree that the amount awarded under any other head requires or warrants appellate interference. M.A.C.A. No.2380 of 2007 -: 5 :- 9. The learned counsel for the appellant points out that proportionate cost has not been awarded as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943). We accept the said contention. 10. In the result: (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of `48,400/- (Rupees forty eight thousand and four hundred only) in addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal in the impugned award. (d) We make it clear that proportionate cost for the proceedings before the Tribunal on the entire amount of compensation shall also be payable as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943). (e) All other directions of the Tribunal are upheld. Sd/- R. BASANT (Judge) Sd/- V. CHITAMBARESH (Judge) Nan/ //true copy// P.S. to Judge