IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 MACA.No. 295 of 2007() ---------------------- OPMV.990/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ----------------------------------- SUBIN, S/O. SURESHKUMAR, (MINOR), MANJALASSERIL HOUSE, BLOCK NO.228, CHETTUPARA KARA, CHETTUPARA P.O., KARUNAPURAM VILLAGE, REPRESENTED BY FATHER AND NATURAL GUARDIAN SURESHKUMAR, -DO- -DO- BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS --------------------------- 1. SHAJIMON K.K., S/O. KESAVAN, KUNNUMPURATHU HOUSE PACHADY P.O., UDUMBANCHOLA TALUK. 2. THE NEW INDIA ASSURANCE CO. LTD., KOTTAYAM. ADV. SRI.S.MAMMU FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A. No.295 of 2007 ------------------------------------- Dated this the 11th day of March, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He was a minor chaild aged 11 years on the date of the accident. He claimed compensation for personal injuries suffered in an accident which occurred on 7.5.01. He claimed an amount of Rs.2.5 lakhs. He was a student of the 4th standard at the relevant time. Fracture of the right humerus is the injury suffered. He was an inpatient for 24 days. He had to be put on plaster cast. He had to undergo surgical procedures. The accident left behind a permanent disability of 20%. The Tribunal accepted the same. Before the Tribunal, the claimant was examined as PW1. Annexures A1 to A11 were marked. The Tribunal on an anxious consideration of all the relevant inputs proceeded to pass the impugned award directing payment of an amount of Rs.66,830/- along with interest @ 6% per annum. The details of the amounts awarded are given below: i) Transport to hospital : Rs.2000/- M.A.C.A. No.295 of 2007 2 ii) Damage to clothing : Rs.250/- iii) Extra nourishment : Rs.500/- iv) Bystander's expenses: Rs.2,700/- v) Medical expenses : Rs.8,377/- vi) Pain and suffering & Loss of amenities : Rs.10,000/- viii) Reduction in earning capacity : Rs.45,000/- (1250 X 12 X 15 20/100) ...................... Total : Rs.68,827/- ..................... (rounded off to Rs.68,830/-) Interest was directed to be paid at 6% per annum. 2. The appellant claims to be aggrieved by the impugned award. What is the grievance ? 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 assails the impugned award on various grounds. 3. First of all it is contended that interest awarded at 6% per annum is too low and meager. Relying on precedents it is contended that interest must have been awarded at least @ 7.5% M.A.C.A. No.295 of 2007 3 per annum. We agree with the learned counsel for the appellant. 4. Secondly the learned counsel for the appellant contends that no compensation has been awarded under the head of loss of studies. The appellant has suffered a major fracture of the right humerus. He was an inpatient for 24 days. He had to continue in plaster also. He was a student of the 4th standard at the relevant period. The injury and the consequences had deprived the appellant of opportunity to pursue his studies during the period of treatment. For this no amount of compensation has at all been awarded. The educational progress of the child was retarded. He must have been obliged to work hard and make up after he resumed his studies. A reasonable amount ought to have been awarded under this head. We find merit in this contention. We are satisfied that Rs.6,000/- (2 X 3000) can safely be fixed as compensation for the loss/retardation of the studies during the period. 5. The learned counsel for the appellant submits that the Tribunal has erred in not awarding any compensation under the head of loss of amenities. There was satisfactory evidence to show shortening of the right femur and bowing of the right M.A.C.A. No.295 of 2007 4 upper forearm. The Tribunal accepted the percentage of disability at 20% and computed compensation for reduction in earning capacity on that rate. Evidently on account of oversight, the Tribunal did not award any separate amount as compensation for loss of amenities. The appellant was a 11 year old child at the time of the accident. Going by his age and the longevity expected of an average Indian, the appellant will have to suffer the disability for the next 6 decades. For that no compensation has been awarded. We find merit in that contention. Considering the nature of the disability and the age of the appellant, we are satisfied that award of a further amount of Rs.20,000/- under the separate head of loss of amenities shall serve the ends of justice. 6. The learned counsel for the appellant has raised a contention that the multiplicand adopted by the Tribunal for working out the compensation for loss of earning capacity is not sufficient. The Tribunal taking note of the fact that the appellant was only a student, aged 11 years at the time of the accident, had reckoned the multiplicand at Rs.1,250/-. Taking note realistically of the fact that the appellant would normally have had to wait for a further period of 8-10 years to start earning and M.A.C.A. No.295 of 2007 5 considering the capitalised accelerated lump sum payment of compensation, we are satisfied that the multiplicand reckoned by the Tribunal does not at any rate warrant appellate interference. 7. The counsel contends that for pain and suffering, the young child/claimant has not been adequately compensated. A major fracture - fracture of the right humerus was suffered by him. He was an inpatient for 24 days. He had to be in plaster for a long period. We are satisfied, in these circumstances, that award of an amount of Rs.15,000/- under the head of pain and suffering would have been reasonable and just. The appellant would be entitled for a further amount of Rs.5,000/- under this head. 8. We are not satisfied that the amounts awarded under other heads do warrant interference. 9. The above discussions lead us to the conclusion that the appellant is entitled for the following amounts in addition to the amounts awarded by the Tribunal. i) Loss of studies : Rs.6,000/- (no amount awarded) ii) Loss of amenities : Rs.20,000/- more (no separate amount awarded) M.A.C.A. No.295 of 2007 6 iii) Pain and suffering : Rs.5,000/- more (total amount of (15000 minus 10000) Rs.10,000/- awarded under the composite head of pain and suffering and loss of amenities ................. Total : Rs.31,000/- ................ (Total Rupees Thirty one thousand only) 10. It is further directed that the entire amount of compensation shall bear interest from the date of the petition till the date of payment at the rate of 7.5% per annum. 11. This appeal is allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-