IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 MFA.No.472 of 2003 (F) ---------------------------- OP(MV).295/1997 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT: PETITIONER ----------------------------- SANALKUMAR AGED 16 YEARS, S/O. GANGADHARAN, CHERUVALLIYIL HOUSE, P.O.ARATTUTHARA, MANANTHAVADY TALUK. (PETITIONER BEING MINOR REPRESENTED BY FATHER AND GUARDIANGANGADHARAN, S/O. LATE VELAYUDHAN CHERUVALLIYIL HOUSE, P.O.ARATTUTHARA, MANANTHAVADY TALUK). BY ADV. SRI.N.J.ANTONY RESPONDENTS/RESPONDENTS: ------------------------------------ 1. T.K.SASIDHARAN S/O. KUTTAN, AGED 32 YEARS, THOPPIL HOUSE, 10TH MILE, VELLAMUNDA, MANANTHAVADY TALUK, (DRIVER CUM OWNER OF JEEP NO.KL-12/5331, D.L.NO.3116/95/W). 2. UNITED INDIAN INSURANCE CO.LTD., KALPETTA, (POLICY NO.100306/31/50/96) ADV. SRI.RAJAN P.KALIYATH FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. F. A No.472 of 2003 ------------------------------------------------ Dated this the 23rd day of September, 2008 JUDGMENT Balachandran, J A minor boy aged 13 years who was a student, while walking along the road at Mananthavady was hit down by jeep bearing registration No.K.L-12/5331 driven by the first respondent/the owner and insured with the second respondent Insurance Company and he sustained injuries. He filed application for compensation before the Motor Accidents Claims Tribunal, Kalpetta claiming an amount of Rs.1,50,000/- from the respondents. The Tribunal found that the accident occurred on account of the negligence of the first respondent and the first respondent as also the insurer/the second respondent are liable to pay damages to the claimant. The M. F. A No.472 of 2003 -2- compensation so payable was fixed at Rs.37,050/-. The claimant has come up in appeal through his father and guardian claiming enhancement in compensation. 2. The only contention that is advanced before us being for enhancement of compensation that was awarded by the Tribunal, we are considering only that aspect in this appeal. The Tribunal has awarded an amount of Rs.500/- for transport to the hospital; Rs.300/- for extra nourishment; Rs.250/- for damage to clothing; Rs.11,000/- towards medical expenses; Rs.10,000/- for pain and suffering and Rs.15,000/- towards loss of earning capacity, disability, deformity etc. 3. It is contended before us by the learned counsel for the appellant that the percentage of disability certified by the Doctor after a proper evaluation as evidenced from Ext.A9 is 10%, but the Tribunal has not M. F. A No.472 of 2003 -3- taken that into account but has only awarded an amount of Rs.15,000/- as a rough and reasonable basis. All the same, the Tribunal itself has observed that due to fracture sustained, some permanent disability would have been caused to the appellant and that from Ext.A9 it is seen that the appellant is not able to extend the later four toes and other toes are not acting and that it is further seen that the second toe is not touching the ground while walking and that the said disability will render possibility of the petitioner getting employment in Army, Navy etc. very remote and even for doing manual work he would be having some disablement. The Tribunal has also observed that the disability has resulted in some deformity to his right leg and it may adversely affect his marriage prospects. M. F. A No.472 of 2003 -4- 4. Considering the entire circumstances, we are of the view that 10% disability certified under Ext.A9 should have been accepted for calculation of permanent disability and loss of earning power. All the same, it is seen that the trial court has observed that on attaining majority the appellant would be able to earn a monthly income of at least Rs.2,500/- per month. That has no bearing at all to the calculation of loss of earning power as the appellant was aged only 13 years at the time of accident. Hence, considering him as a non-earning person, annual notional income provided under the Second Schedule to the Motor Vehicles Act should have been accepted. The appropriate multiplier is 15 as per the Second Schedule. Hence, the amount due by way of compensation for loss of earning power and permanent disability will be Rs.22,500/- (Rs.15,000/- x M. F. A No.472 of 2003 -5- 10/100 x 15) as against Rs.15,000/- awarded by the Tribunal. We also grant the appellant a further amount of Rs.2,500/- for deformity that has occurred to his leg by reason of the injury sustained in the accident. Thus, the appellant would be entitled to an additional compensation of Rs.10,000/-. The appellant will also be entitled to interest at 7.5% for the above amount from the date of application till its deposit. The amount shall be deposited by the second respondent/Insurance Company within three months from today. On such deposit the appellant who has attained majority by this time shall be entitled to receive the same. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-