IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 MACA.No. 695 of 2003() ---------------------- OPMV.579/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): APPELLANT/PETITIONER IN THE O.P(MV): -------------------------------------------------- MOHAMMED ASHIQUE, AGED 9 YEARS (MINOR) S/O. KUNHALIKUTTY, REPRESENTED BY NATURAL GUARDIAN MOTHER SELMA, W/O. KUNHALIKUTTY, THOTTINGAL HOUSE, CHERPULASSERY VILLAGE IN OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S): RESPONDENTS IN OP(MV): ------------------------------------- 1. ABOOBACKER, S/O. HAMSA, AYINIKKATHODI HOUSE, CHETHALLUR POST, KARINKALLATHANI, PALAKKAD DISTRICT. 2. V.MOIDUPPA, S/O. MUHAMMED, VANDUTHODI HOUSE, POST ANAMANGAD, PERINTHALMANNA, MALAPPURAM DISTRICT. 3. THE UNITED INDIA INSURANCE CO. LTD., PEECHI COMPLEX, PERINTHALMANNA POST, MALAPPURAM DISTRICT. 4. ABDUL MANZOOR, S/O. MOIDUTTY, THAIKKOTTIL HOUSE, VAZHENKADA, EDAYIKKAL, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 5. ARSHAL BABU, S/O. MUHAMMED, KOLAMBIL HOUSE, EDAYIKKAL, VAZHENKADA, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 6. THE UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, PEECHI COMPLEX, CALICUT ROAD, PERINTHALMANNA (POST), MALAPPURAM DISTRICT. ADV. SRI.M.A.HAKIM SHAH FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.695 of 2003 ------------------------------------- Dated this the 12th day of March, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He, a minor child aged about 7 years at the time of the accident, has claimed compensation through his mother and guardian for personal injuries suffered in an accident which occurred on 12.04.2001. The claimant had suffered crush injury resulting in loss of the middle, ring and little fingers of the right hand. He was an inpatient for a period of 20 days. He had allegedly suffered physical disability, which was assessed at 15% by the doctor in Ext.A12 certificate issued by him. An amount of Rs.2.70 lakhs was claimed as compensation. Before the Tribunal, the mother of the claimant was examined as PW1 and the doctor who issued Ext.A12 certificate was examined as PW2. Ext.A1 to A12 were marked. The Tribunal on an anxious consideration of all the available inputs came to the conclusion that the appellant is entitled for an amount of Rs.1,12,250/- as compensation. Direction was issued to pay that amount along with interest @ 9% per annum. The details of the amounts awarded are shown below: M.A.C.A No.695 of 2003 2 i) Medical expenses : Rs.44,500/- ii) Pain and suffering : Rs.21,000/- iii) Hospital expenses - bystander's expenses etc. : Rs.3,250/- iv) Loss of amenities and loss of one academic year : Rs.15,000/- v) Extra nourishment : Rs.3,000/- vi) Loss of earning capacity consequent to disability (1250 X 12 X 15 X 10/100) : Rs.22,500/- ................... Total : Rs.1,12,250/- ................... 2. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to raise against the impugned award, the learned counsel for the appellant raises various grounds. 3. First of all the counsel contends that the Tribunal erred grossly in not accepting the certificate issued by the doctor, which shows that the physical disability is 15%. There has been loss of the middle, ring and little fingers of the right hand. The learned counsel for the appellant draws our attention M.A.C.A No.695 of 2003 3 to Part 1 of Schedule 1 of the Workmen's Compensation Act and contends that 12 + 7 + 7, ie. 26% reduction in earning capacity can safely be assumed on the basis of the schedule prescribed by the legislature. At any rate the Tribunal should not have refused to accept the medical certificate which shows 15% disability. We are in complete agreement with the learned counsel for the appellant. The refusal by the Tribunal to accept 15% as the disability as certified by the doctor, we feel, is not justified. 4. The counsel then contends that the multiplicand was reckoned by the Tribunal at Rs.1,250/- per mensem. Evidently the Tribunal drew inspiration from the 2nd schedule to the Motor Vehicles Act which is applicable strictly only in a case under Section 163 A of the M.V Act. But it is trite that the entries in the 2nd schedule can safely be used as a guide while attempting to compute compensation payable in claims under Section 166 of the M.V Act. As early as in 1994, the legislature has permitted Tribunals to draw an inference of prudence that Rs.1,250/- per mensem can be assumed to be the wages even of non earning persons. The incident in this case occurred 7 years later. Blindly importing the stipulation of 2nd schedule was not justified, contends the counsel. We agree with the counsel. We M.A.C.A No.695 of 2003 4 are satisfied that in the facts and circumstances of this case, consistent with the inflationary trends in the economy, the Tribunal could safely have adopted Rs.1,500/- at least as the probable monthly income for the purpose of adopting the multiplicand for computation of compensation. The appellant would hence be entitled for a total amount of Rs.40,500/- (1,500 X 12 X 15 X 15/100), ie. an amount of Rs.18,000/- more. 5. The learned counsel for the appellant then contends that the amount awarded under the head of loss of amenities and loss of academic year is totally unreal and perversely low. Loss of one year of studies must necessarily be assumed to be of seminal disadvantage to the appellant. We are satisfied that under that head itself, an amount of Rs.7,500/- can be awarded as compensation. 3 fingers of the right hand have been lost by the young child aged 7 years. He will have to live the rest of his life enduring with disability which will certainly have an impact on the quality of enjoyment of life by the appellant. We are, in these circumstances, satisfied that the Tribunal must have awarded an amount of Rs.20,000/- under the head of loss of amenities alone. M.A.C.A No.695 of 2003 5 6. We are not satisfied that the amounts awarded under the other heads do require appellate interference. 7. On the basis of the above discussions, the appellant will be entitled to the following further amounts in addition to the amounts already awarded by the Tribunal. i) Compensation for loss of earning capacity [(1500 X 12 X 15 X 15/100) =40,500 minus 22,500] : Rs.18,000/- more ii) Loss of amenities and loss of educational prospects (27,500 minus 15000) : Rs.12,500/- ................. Total Rs.30,500/- ................. 8. Needless to say, the entire amount of compensation shall bear interest from the date of the petition till payment at the rate directed by the Tribunal. 9. This appeal is allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-