IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 MACA.No. 1505 of 2011 ----------------------- OPMV.633/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/: PETITIONER: ------------------------- JAYARAM.T.V., AGED 11 YEARS, REPRESENTED BY HIS FATHER V.V.RAMACHANDRAN S/O.KUNHAPPAN, NANDHINI, VILAYAMCODE P.O., MANDOOR (VIA), KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT: --------------- THE ORIENTAL INSURANCE CO.LTD., MARINA SHOPPING COMPLEX, NATIONAL HIGHWAY, TALIPARAMBA, KANNUR DISTRICT, PIN-670 141. ADV. SRI.TITUS MANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 1505 OF 2011 ============================ Dated this the 24th day of October 2011 JUDGMENT R.Basant, J. The claimant is the appellant. Claimant is a three year old child represented by his guardian. The claimant claimed compensation for personal injuries suffered by him in a motor accident which took place on 21.09.2004. The minor child had suffered injuries including fractures. Fracture upper 3rd right humerus, and compound un-displaced incomplete fracture right tibia middle 3rd are the injuries suffered. He was treated with POP cast. He was an inpatient for a period of five days. He continued treatment as an out patient. 2. Against a total claim of Rs.1,50,000/-, the Tribunal awarded an amount of Rs.43,400/- as per the details shown in paragraph 15 of the impugned award which we extract below: Sl.No,. Head Amount awarded Rs. Basis vital details in a nut shell 1 Loss of earning(total) NA MACA 1505/2011 2 Sl.No,. Head Amount awarded Rs. Basis vital details in a nut shell 2 Loss of earning(partial) NA 3 Medical and miscellaneous expenses 2,900/- Covered by Ext.A5 series 4 Future treatment NA 5 Bystander expenses 500/- Rs.100/- per day for five days 6 Transportation expenses 500/- Moderate rate 7 Extra nourishment 2,500/- Considering treatment 8 Damage to clothing etc NA 9 Pain and suffering 20,000/- Considering the fracture 10 Disability income NA 11 Los of consortium NA 12 Loss of love and affection NA 13 Loss of state NA 14 Loss of amenities and disability 15000 global 15 Compensation for the loss of school classes NA 16 any other head(review treatment) 2,000/- In view of Ext.A4 series Total 43,400/- Rs.43,400/- along with interest at the rate of 7.5%per annum from the date of petition to the date of realisation with cost Rs.1,000/- 3. Called upon to explain and be specific, the learned counsel for the appellant submits that the challenge is directed MACA 1505/2011 3 only against the quantum of compensation awarded by the Tribunal. The learned counsel for the Insurance Company submits that notice ought to be issued to owner/driver also. We are unable to agree. There is no dispute regarding the liability. The respondent-insurer has been made entirely liable. We do not in these circumstances think it necessary to wait for issue and return of notice to the respondents – owner and driver. 4. Learned counsel for the appellant contends that the quantum of compensation awarded under the head of loss of amenities and disability is not adequate. Multiplier multiplicand method has not been pressed into service. 2% disability of the infant child is proved by the report, Ext.X1, submitted by the Medical Board to which the victim was referred to. In addition to the compensation for reduction in earning capacity, compensation must have been awarded for loss of amenities. Learned counsel then submits that the quantum of compensation awarded under the head of pain and suffering (Rs.20,000) is too inadequate considering the tender age of the child and the manifold sufferings which the child must have undergone because of the injury and the consequent treatment. MACA 1505/2011 4 5. We find merit in the contention that separate amounts ought to have been awarded under the head of loss of earning capacity and loss of amenities. The Tribunal has awarded only a global amount under the composite head. We agree that the amount of compensation under the head of pain and suffering also deserves to be enhanced. 6. The above discussions lead us to the conclusion that the claimant-child is entitled for a further amount of Rs.25,000/- as per the details shown below: Sl.No. head Amount awarded details 1 Pain and suffering Rs.5,000/- Rs.25000 minus 20000 2 Loss of Reduction in earning capacity Rs.10,800 (3000x12x15x2/100) (prospective income is reckoned at Rs.3000/-, multiplier is reckoned at 15 as stipulated in the II Schedule and reduction in earning capacity is accepted at 2% as certified by the Medical Board. Rs.4,200/- excess (Rs.15,000 minus 10800) MACA 1505/2011 5 Sl.No. head Amount awarded details 3 Loss of amenities Rs.20,000 (taking into account the tender age of the child and the long period during which it will have to endure the effects of the disability of 2%) Total Rs. 20,800/- 25000 minus 4200 7. We are not persuaded to agree that the amount awarded under any other head deserves to be enhanced/modified. 8. Learned counsel for the appellant contends that cost has been awarded on a flat rate of Rs.1,000/- only. We agree with the learned counsel that proportionate cost before the Tribunal for the entire amount awarded as compensation deserves to be granted as held in Jeena v. Satheesh Babu.K.[2011(3) K.H.C.728]. 9. In the result, a)this appeal is allowed in part. b)The appellant is found entitled to a further amount of Rs. 20,800/- (rupees twenty thousand eight hundred only) in addition to the amount awarded by MACA 1505/2011 6 the Tribunal. c)We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified by the Tribunal. d)We further direct that proportionate cost before the Tribunal be paid as indicated in Jeena(supra). d)All other directions of the Tribunal are upheld. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. true copy P.S.to Judge MACA 1505/2011 7