IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 MACA.No. 1348 of 2006() ----------------------- OPMV.562/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SUMAYYA, D/O.T.P.MEMI, THAZHEPURAYIL HOUSE, P.O.IRIKKUR, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENT NO.3 ------------------------------ ORIENTAL INSURANCE CO.LTD., KANNUR. ADV. SRI.A.R.GEORGE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- M.A.C.A. No.1348 of 2006 ------------------------------------------------- Dated this the 6th day of April, 2009 JUDGMENT Basant,J. The claimant before the Tribunal is the appellant before us. She – a minor girl child aged about 11 years on the date of the accident, had staked her claim for compensation through her guardian for the loss suffered by her in a motor accident which took place on 11/4/97. Crush injury was suffered on the right leg. Amputation of the right leg below the knee and fracture of the left humerus are the major injuries suffered. She was in patient for a period of 33 days. She had to undergo surgery – craniotomy. She continued treatment thereafter. She has suffered permanent disability to the tune of 60% as a result of the accident. 2. Before the Tribunal, P.W1 - the victim, as also two M.A.C.A. No.1348 of 2006 -: 2 :- Doctors who attended on her were examined. Exts.A1 to A9 were marked. The Tribunal, on an anxious consideration of all the relevant inputs, directed payment of an amount of Rs.3,32,000/- as compensation against an amount of Rs.6 lakhs claimed by the claimant. The amount was awarded under the following heads: “Cloth and articles - Rs.500/- Extra nourishment - Rs.2,000/- Bystander’s expenses - Rs.5,000/- Transportation to hospital - Rs.5,000/- Medical expenses (against bills produced) - Rs.92,300/- Pain and suffering - Rs.25,000/- Loss of amenities - Rs.10,000/- For disfiguration, loss of marriage prospects] etc., - Rs.30,000/- Reduction in earning capacity (1500 x 12 x 15 x 60/100) - Rs.1,62,000/- ----------------- Total - Rs.3,31,800/- ========== Interest was directed to be paid at the rate of 9% per annum. 3. The appellant claims to be aggrieved by the impugned M.A.C.A. No.1348 of 2006 -: 3 :- award. 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 contends that the amounts have not been awarded reasonably and realistically for loss of amenities/disfiguration/loss of marriage prospects/ reduction in the quality of life. We note that the Tribunal has already awarded a total amount of Rs.40,000/- as compensation under that head. The injured is a 11 years old minor girl. Amputation below the knee of the right leg has been suffered by her. Artificial limb has to be used now. A total amount of Rs.40,000/- has been awarded under this head. The learned counsel for the appellant submits that the 11 year old minor child will have to endure the trauma of physical disability for a period of about 6 decades – going by the longevity of an average Indian. It is unlikely that she will be able to live a proper married life. Taking all these circumstances into account reasonably higher amount must have been awarded by the Tribunal under the composite heads of loss of amenities etc. Rs.40,000/- awarded under this head is too meager and insufficient, contends the learned counsel for the appellant. 4. The learned counsel for the Insurance Company, on the contrary, contends that the amount of Rs.40,000/- has been M.A.C.A. No.1348 of 2006 -: 4 :- awarded in addition to the amount of Rs.25,000/- awarded under the head of pain and suffering as also Rs.1,62,000/- awarded for reduction in earning capacity. The learned counsel for the appellant contends that only Rs.1,500/- has been reckoned as the multiplicand while working out the reduction in earning capacity. The child was in the school and was aged only 11 years. Under the 2nd Schedule to the M.V. Act from 1994 even for a non-earning person’s income can be assumed to be Rs.1,250/- per mensem. The Tribunal, in the circumstances of this case, has reckoned Rs.1,500/- as the monthly income and 60% as claimed by the appellant has been accepted as the reduction in earning capacity. Under the head of reduction in earning capacity, we are not persuaded to award any higher amount further. Taking note of the impact of the physical disability on the quality for enjoyment of the claimant/appellant for a fairly long period of 60 years during which she can be expected to suffer deterioration in the quality of live, we are satisfied that a higher amount can safely be awarded under the composite head of loss of amenities, disfiguration, loss of marriage prospects etc. We are satisfied that award of an amount of Rs.75,000/- (Rs.35,000/- more) shall be eminently reasonable. M.A.C.A. No.1348 of 2006 -: 5 :- 5. The learned counsel for the appellant contends that an artificial limb has to be used for the appellant now and for that future expenses will be required. No amount has been awarded under the head of future expenses. Reasonable amount should be awarded under this head, contends the learned counsel. We are satisfied that an amount of Rs.10,000/- can be awarded under the head of probable future expenses etc. 6. The learned counsel finally contends that the educational prospects of the child has been affected. The extent of injury had compelled her to discontinue her studies in school. There is nothing to indicate the permanent discontinuation of the studies; but it only be fair to assume, considering the nature of the injury, treatment, hospitalisation and disability, that the educational progress must have been retarded. We are satisfied that an amount of Rs.10,000/- can be awarded under the head of loss of educational prospects. We are not persuaded to agree that the amount awarded under any other head deserves or warrants interference. 7. On the basis of the additional amounts awarded, we hold that the appellant is entitled to a total amount of Rs.55,000/- more as per the details given below in addition to the amounts already awarded by the Tribunal: M.A.C.A. No.1348 of 2006 -: 6 :- 1. Loss of amenities, disfiguration, loss of marriage prospects etc., (Rs.75,000/- minus Rs.40,000/-) - Rs.35,000/- 2. Expenses for future treatment (no amount awarded) - Rs.10,000/- 3. Loss of educational prospects, retardation of her studies (no amount awarded) - Rs.10,000/- ----------------- Total - Rs.55,000/- ======= 8. Needless to say, the entire amount of compensation awarded shall carry interest from the date of the petition 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) Nan/ M.A.C.A. No.1348 of 2006 -: 7 :-