IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 MACA.No. 988 of 2007() ---------------------- OPMV.463/1998 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- JAMSHEER(MINOR) AGED 15 YEARS, REPRESENTED BY FATHER MOYIN, S/O ABOOBACKER, KAKKAYATH HOUSE, POST KALPETTA, EMILY, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADVS. SRI.GRASHIOUS KURIAKOSE SMT.CELINE JOSEPH RESPONDENT(S): RESPONDENT NO.3 ------------------------------ THE NEW INDIA ASSURANCE CO. LTD., M.G.T.BUILDINGS, KALPETTA. ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO. 988 OF 2007 --------------------------------------------------------- Dated this the 3rd day of April, 2009 JUDGMENT Basant, J. The claimant before the Tribunal is the appellant before us. The claimant is a minor aged about seven years and he staked the claim through his guardian and next friend, i.e., his father. He suffered personal injuries in an accident which occurred on 30.6.1998. The victim suffered fracture of the neck of humerus and fracture of the skull. He was treated as an inpatient for a period of 11 days and had to attend the hospital for physiotherapy thereafter. He suffered permanent disability to the extent of 3% as certified by the doctor in Ext.A5 disability certificate. He claimed an amount of Rs.1,25,000/- as compensation. Before the Tribunal, the father of the claimant was examined as PW.1. Exts.A1 to A8 were marked. 2. The Tribunal, on an anxious consideration of all the relevant inputs, proceeded to pass the impugned award directing payment of a total amount of Rs.19,460/- as per the details shown below: M.A.C.A. NO.988/2007 2 i. Transport to hospital : Rs. 400/- ii. Extra nourishment : Rs. 500/- iii. By-stander expenses : Rs. 300/- iv. Damage to clothing : Rs. 200/- v. Medical expenses (against bills produced) : Rs. 6,200/- vi. Pain and suffering : Rs. 7,000/- vii. Compensation for disability (900x12x15x3/100) : Rs. 4,860/- ---------------- Total : Rs.19,460/- ---------------- The said amount was directed to be paid along with interest at the rate of 6% per annum. 3. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant contends that the quantum of compensation awarded under the various heads are painfully low and perversely inadequate. The Tribunal has not realistically applied its mind to the relevant circumstances, M.A.C.A. NO.988/2007 3 contends counsel. 4. First of all, it is contended that the interest awarded at 6% per annum is totally insufficient. Counsel, relying on precedents, contends that interest must have been awarded at least at the rate of 7.5% per annum. We totally agree with the learned counsel. 5. Learned counsel then contends that the Tribunal has not realistically taken into account the fact that the appellant had suffered serious injuries , had been an inpatient for 11 days and was forced to undergo physiotherapy thereafter on a number of occasions. The Tribunal erred grossly in only awarding a total amount of Rs.1,200/- towards, transportation, extra nourishment and by-stander expenses(400+500+300). Reasonable amounts must have been awarded under these heads, it is submitted. We take note of the injury suffered by the appellant as also the age of the appellant. We are satisfied that there is merit in the contention that reasonable amounts have not been awarded under the three heads. In any view of the matter, we are satisfied that a total amount of Rs.3,000/- can be awarded under the heads of transportation, extra nourishment and by-stander expenses. M.A.C.A. NO.988/2007 4 6. Learned counsel for the appellant then contends that only an amount of Rs.7,000/- has been awarded as compensation for pain and suffering. The appellant has suffered injury to the humerus and skull. He was an inpatient for a period of 11 days and had to undergo a long period of physiotherapy thereafter. We are satisfied, in the circumstances, that an amount of Rs.15,000/- can be granted under the head pain and suffering. 7. Learned counsel then contends that the Tribunal had gone perverse in reckoning only Rs.900/- as the income for the purpose of calculating the probable reduction in earning capacity. Even for a non- earning person, from 1994 the Second Schedule to the Motor Vehicles Act permits and enables the courts to draw the presumption of prudence that Rs.1,250/- can be accepted as the multiplicand. Consequently, the appellant is entitled to a total amount of Rs.6,750/- (1250x12x15x3/100) under this head. Counsel argues that for such a young child, this disability shall have reflection on the quality and enjoyment of his life and the Tribunal erred in not awarding any amount for loss of amenities which the appellant will have to endure for the rest of his life. Taking into account the average life expectancy of an Indian, the appellant will have to endure this disability for about six decades more. We are satisfied that appropriate amount must be awarded as compensation for loss of M.A.C.A. NO.988/2007 5 amenities. We fix the said amount as Rs.7,500/-. 8. Counsel further contends that the accident, injury and the treatment must necessarily have retarded the educational curriculum and progress of the child and that no amount was awarded by the Tribunal towards retardation to educational progress. In the circumstances, it appears to be reasonable to assume that there must have been retardation in the educational progress of the child at least for a period of three months. The child may not have been able to attend school. We are satisfied that an amount of Rs.3,500/- can safely be awarded under this head. 9. We are, in the circumstances, satisfied that the appellant is entitled to the following further amounts as compensation in addition to the amounts already awarded by the Tribunal: i. Compensation for transportation, extra nourishment and by-stander expenses (3000 minus 1200) :Rs. 1,800/- ii. Compensation for pain and suffering(15000 minus 7000) :Rs. 8,000/- iii. Reduction in earning capacity (1250x12x15x3/100 minus 4860) :Rs. 1,890/- M.A.C.A. NO.988/2007 6 iv. Loss of amenities (no amount awarded) :Rs. 7,500/- v. Retardation to educational progress (no amount awarded) :Rs. 3,500/- --------------- Total :Rs.22,690/- --------------- We further direct that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the petition till the date of deposit. 10. This appeal is allowed in part to the above extent. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO.988/2007 7 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.988/2007 JUDGMENT 3rd April, 2009 M.A.C.A. NO.988/2007 8