IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 MACA.No. 480 of 2008() ---------------------- OPMV.316/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- MUHAMMED ALI, S/O. AVULLA, AGED 21 YEARS, KORANKUNNU HOUSE, VELLAMUNDA AMSOM, DESOM, MANANTHAVADY TALUK, WAYANAD. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S): RESPONDENT NO.3: ------------------------------- ORIENTAL INSURANCE COMPANY LTD., BADAGARA. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. * * * * * * * * * * * * * M.A.C.A.No.480 of 2008 ---------------------------------------- Dated this the 4th day of November 2011 J U D G M E N T R.BASANT,J Claimant is the appellant. Claimant, on the date of the accident, was a minor aged 12 years. He suffered injuries in a motor accident which occurred on 07/12/1997. He claimed a total amount of Rs.3,00,000/- as compensation. He was an in- patient for a period of 18 days. He had suffered fracture of the left femur, fracture of the skull, head injury and lacerated wound on the scalp. He was a student at the relevant time. He had suffered permanent physical disability to the tune of 10% as certified in Ext.A12 disability certificate which the tribunal accepted in full. Against a total claim of Rs.3,00,000/- the tribunal awarded only an amount of Rs.32,500/- as per the details which we extract below: Sl.N Head Amount claimed (Rs.) Amount awarded (Rs.) 1. Pain and suffering 75,000/- 5,000/- 2. Transport to hospital 5,000/- 1,500/- 3. Extra nourishment 5,000/- 2,000/- M.A.C.A.No.480 of 2008 2 Sl.N Head Amount claimed (Rs.) Amount awarded (Rs.) 4. Medical bills of treatment (No bills produced) 20,000/- 2,000/- 5. Disability 50,000/-} 20,000/- 6. Loss of earning power 75,000/-} 7. Damage to clothing & articles 500/- 8. Bystander's expenses Nil 2,000/- 9. Loss of expectation of life 20,000/- Nil 10. Mental shock 20,000/- Nil 11. Loss of academic year 20,000/- Nil Total 3,00,000/- 32,500/- 2. The insurance company has been made entirely liable under the impugned award. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The challenge is directed only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all submits that Rs.5,000/- awarded under the head of pain and suffering is grossly inadequate. A young child had suffered injuries including fracture of the skull, fracture of the left femur and head injury. He was an in-patient for a period of 18 days. He had to continue treatment thereafter. Taking all the relevant circumstances into M.A.C.A.No.480 of 2008 3 account, an amount of Rs.10,000/- can safely be fixed as the quantum of compensation payable under the head of pain and suffering. 4. The learned counsel for the appellant submits that the consequent injury and treatment had led to loss of an educational year for the child. Even though no clinching evidence to that effect is produced, it is reasonable to assume that during the period of treatment as an in-patient and thereafter, the child must have been rendered involuntarily unable to attend school. For such retardation in educational progress, the child is certainly entitled to be compensated. We are satisfied that an amount of Rs.5,000/- can be awarded as compensation under the said head. 5. The learned counsel for the appellant submits that no compensation has been awarded for damage to clothing and article. We agree that an amount of Rs.500/- can be awarded under that head. 6. The major thrust of the challenge is against the omission to award any amount of compensation under the head of loss of earning capacity as a consequence of the disability M.A.C.A.No.480 of 2008 4 suffered. 10% disability has been suffered by the appellant and it is safe in the circumstances of the case to assume that the physical disability must have left behind reduction in earning capacity to identical extent. The accident, we must remind ourselves had taken place on 07/12/1997. Rs.1,250/- can safely be reckoned as monthly income, going by the second schedule to the M.V.Act. 15 is adopted as the multiplier. Compensation has been awarded under the head of disability and the amount awarded is only Rs.20,000/-. We are satisfied that the amount deserves to be re-worked. 6. No compensation is seen awarded under the head of loss of amenities. 10% physical disability suffered by such a child would certainly leave behind two fold reflections in his life. It would reduce his earning capacity. It would also impair and reduce the quality of enjoyment of life. For the latter dimension of loss, claimant is certainly entitled to be compensated. 7. The above discussions lead us to the conclusion that the claimant is entitled to a further amount of Rs.33,000/- as compensation as per the details given below. i) Pain and suffering Rs.5,000/- (Rs.10,000/- minus Rs.5,000/-) M.A.C.A.No.480 of 2008 5 ii) Compensation for retardation in Rs.5,000/- educational progress/loss of academic period (no amount awarded by the tribunal) iii) Loss of clothing and articles Rs.500/- (no amount awarded by the tribunal) iv) Loss of earning capacity Rs.2,500/- [Rs.22,500/- (Rs.1,250/- x 12 x 15 x 10/100) minus Rs.20,000/-] v) Loss of amenities Rs.20,000/- (no amount awarded separately by the tribunal) ------------------------ Total Rs.33,000/- ========== 8. We are not persuaded to interfere with the quantum of compensation awarded under any other head. 9. We further clarify that proportionate cost awarded by the tribunal shall be calculated as per the decision in Jeena v. Satheesh Babu.K [2011(3) KLT 943]. 10. In the result, a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of Rs.33,000/- (Rupees thirty three thousand only) in addition to the amount already awarded by the Tribunal. M.A.C.A.No.480 of 2008 6 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 under the impugned award. d) We make it clear that no interest shall be payable on the enhanced amount of compensation for the period of 961 days, that is the period of delay in filing this appeal. e) Proportionate cost before the tribunal shall be paid on the entire amount of compensation hereby awarded as per the decision in Jeena (Supra). f) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) jsr // True Copy// PA to Judge M.A.C.A.No.480 of 2008 7 M.A.C.A.No.480 of 2008 8 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010