IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 MACA.No. 645 of 2003() ---------------------- OPMV.726/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S):PETITIONERS ------------------------------------ 1. A.K.BARSHAD, AGED 15 YEARS, S/O. A.M.BASHEER, MINOR, REPRESENTED BY FATHER GUARDIAN A.M.BASHEER, PARAKKATA, NEAR POLICE QUARTERS, P.O.VIDYANAGAR, KASARAGOD TALUK, KASARAGOD DISTRICT 2. A.M.BASHEER, AGED 39 YEARS, S/O. A.K.MUHAMMED (BOTH ARE RESIDING AT PARAKATA, NEAR POLICE QUARTERS, P.O.VIDYANAGAR, KASARAGOD TALUK, KASARAGOD DISTRICT BY ADV. SRI.M.SASINDRAN SRI.P.V.JAYARAJAN SRI.T.P.ELDHO RESPONDENT(S): RESPONDENTS 1 TO 3 & SUPPL. RESPDTS 4 TO 6 --------------------------------------------------------- 1. P.S.ASHRAF, AGED 28 YEARS,S/O.SAIDALAVI, RESIDING AT CHERKALA, P.O. CHENGALA, KASARAGOD TALUK, KASARAGOD DISTRICT 2. C.K.MUHAMMED, AGED 36 YEARS, S/O. ABDULLA, RESIDING AT OTACHL, KOTOOR, P.O.KOTOOR, MULIYAR, KASARAGOD TALUK, KASARAGOD DISTRICT 3. THE BRANCH MANAGER, UNITED INSURANCE CO. LTD., P.B.NO.19, M.G.ROAD, KASARAGOD. 4. K.ABDUL RAZAK S/O. SULAIMAN, KARADICHAL HOUSE, PUTHUR, KASARAGOD DISTRICT, NOW RESIDING ATR NASARATH NAGAR, BAVIKKARA KUNNIL, BOVIKANAM. MACA No.645/2003 2 5. M.HANEEFA S/O. MUHAMMED BEARY, YRUMBODY HOUSE, P.O. PERLA, KASARAGOD TALUK. 6. THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., KASARAGOD. ADV. SMT.SARAH SALVY FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.645 of 2003 -------------------------------------- Dated this the 3rd day of December, 2008. JUDGMENT Thomas P.Joseph, J. First appellant, aged 10 years at the relevant time was involved in a motor accident on 27.6.1998. He was travelling in the autorickshaw driven by the fourth respondent. The tempo van driven by the first respondent hit the autorickshaw. Second appellant is the father of first appellant, impleaded in the application and the appeal to represent the first appellant due to his minority. Appellants alleged that the accident occurred due to the rash and negligent driving of the vehicles by respondents 1 and 4. Respondents 2 and 3 are the owner and insurer of the tempo van. Respondents 5 and 6 are the owner and insurer of the autorickshaw. Tribunal found that accident occurred due to the rashness and negligence of respondents 1 and 4 and found all the respondents jointly and severally liable. Award was passed allowing the appellants to recover Rs.1,59,600/- as compensation with interest at the rate of 9% per annum from the date of application till realisation. Respondents 3 and 6, the insurers of the offending vehicles were directed to deposit the amount in equal proportion. Appellants are aggrieved by the quantum of compensation awarded and preferred this appeal. 2. Heard counsel for the appellants and contesting respondents. MACA No.645/2003 2 3. Only point for consideration is whether appellants are entitled to get enhanced compensation. 4. Perused the relevant records. 5. The point. Ext.A3 is the copy of wound certificate which is produced to show the injuries suffered by the first appellant. He suffered a crush injury over right upper limb extending from above right wrist to two inches above right elbow. Investigation of the right forearm revealed that he had suffered extensive compound fractures. Ext.A5 is the treatment certificate. It is revealed that the right forearm was amputated above elbow on 27.6.1998. First appellant was treated with skin grafting and was discharged on 18.7.1998. It is stated in Ext.A5 by the doctor who treated the first appellant that first appellant suffered partial permanent disability to the extent of 80%, of the right upper limb function. First appellant was referred to the District Medical Board for assessment of disability. Ext.XI is the certificate issued by the Medical Board certifying the permanent disability of the first appellant at 50%. Tribunal has observed in paragraph 12 of the award that the right arm of the first appellant was amputated just above elbow. Appellants produced Ext.A6, photocopy of marklist to show that first MACA No.645/2003 3 appellant was brilliant in his studies but, that certificate was not accepted by the Tribunal for the reason that it was only a copy. But no explanation was given for non-production of the original marklist. Ext.A7 series are the medical bills produced by the appellants to prove the treatment expenses. Tribunal awarded Rs.15,000/- as compensation for transportation to hospital, damage to clothings, extra nourishment and treatment expenses. Rs.15,000/- was awarded as compensation for pain and suffering undergone by the first appellant. For the purpose of assessment of compensation for disability and loss of earning power, Tribunal fixed the notional income of the first appellant at Rs.600/- per month, adopted multiplier of '18' and awarded Rs.1,29,600/- as compensation. According to the learned counsel for appellant, compensation awarded is meagre. 6. We have gone through the award and considered the statements made by the counsel on both sides. Since the first appellant was aged 10 years at the relevant time, appropriate multiplier to be adopted taking guidelines from Second Schedule was '15' as against '18' taken by the Tribunal. But, we are not inclined to interfere with the multiplier taken by the Tribunal for the reasons that respondents have not challenged that finding and awarding of compensation accordingly, that amputation of right arm above elbow would MACA No.645/2003 4 permanently affect the earning capacity of the first appellant who was aged only 10 years at the relevant time, he has to carry that disability till the end of his life and that will affect his enjoyment of amenities of life forever. 7. Tribunal did not accept Ext.A6 for the reason that original was not produced. At the same time, there is nothing on record to show that Ext.A6 is not genuine. Strict rules of evidence need not be applied to the proceedings before the Tribunal. Therefore, we find no reason to reject Ext.A6. Learned counsel for appellants contended that the first appellant, with the disability appeared for SSLC Examination and secured good marks. Considering the wages payable to unskilled labourers in Kerala during the time of accident, we are inclined to fix the notional income of the first appellant as on the date of accident at Rs.1,500./- per month. Tribunal has accepted the recommendation in Ext.XI that permanent disability of the first appellant is 50% which we find no reason to interfere. Thus, compensation payable for disability and loss of earning power comes to Rs.1,62,000/= [(Rs.1,500x12x50x18)/100] as against Rs.1,29,600/- awarded by the Tribunal. Additional compensation payable to the first appellant on that count is Rs.32,400/-. MACA No.645/2003 5 8. It is seen from the award that compensation was not granted for loss of enjoyment of amenities of life. We found from the evidence that the right arm of the first appellant above elbow was amputated. First appellant was aged only 10 years at the relevant time. He suffered disability in his childhood itself and has to carry it throughout life. His enjoyment of the amenities of life has been seriously affected. Hence, he is entitled to compensation and considering all relevant factors, we award Rs.20,000/- on that count. 9. For the pain and suffering undergone by the first appellant, only Rs.15,000/- was awarded by the Tribunal. Evidence revealed that first appellant was inpatient for quite some time (for 22 days). Consequent to the amputation, first appellant had to undergo severe pain and suffering. Ext.A3 shows that he suffered crush injury over right upper limb extending from above right wrist to two inches above right elbow and investigation revealed that there was multiple fractures at that side which required the amputation above elbow of right upper limb. Considering the prolonged pain and suffering undergone by the first appellant at the time of accident and thereafter, we are inclined to think that atleast Rs.20,000/- should have been awarded on that count as against Rs.15,000/- awarded by the Tribunal. Thus, first appellant is entitled to get a further sum of Rs.5,000/- on that count. MACA No.645/2003 6 10. A lumpsum of Rs.15,000/- was awarded towards transportation to hospital, damage to clothing, extra nourishment and treatment expenses. First appellant underwent inpatient treatment for 22 days. During that time he required the assistance of a bystander. Amputation was on 27.6.1998 and he was discharged on 18.7.1998. Obviously, even after discharge from the hospital he required the assistance of a bystander to carry on his ordinary pursuits until he recovered. It is also possible that the entire medical expenses are not reflected by the bills produced. May be, the appellants were not able to procure and produce all the medical bills. First appellant is entitled to get reasonable compensation for treatment expenses. Considering these aspects, we are inclined to award a further sum of Rs.6,000/- for expenses of bystander and treatment. 11. Though it is contended by learned counsel that compensation awarded on other counts are also meagre, considering all relevant factors including the total amount of compensation which the first appellant is found entitled, we are not persuaded to accept that contention. Thus, the additional compensation payable to the first appellant is Rs.63,400/-. He will also get interest at the rate of 7.5% per annum from the date of application till realization. MACA No.645/2003 7 Resultantly, this appeal is allowed in part. Over and above the compensation awarded by the Tribunal, first appellant is allowed to realize a further sum of Rs.63,400/- (Rupees Sixtythree thousand and four hundred only) with 7.5% interest per annum from the date of application till realization from respondents 1 to 6, jointly and severally. Respondents 3 and 6 being the insurers of the offending vehicles are directed to deposit the said amount in the Tribunal in equal proportion. On such deposit, half of the amount shall be deposited in a nationalised bank in the name of the first appellant until he attained majority and rest of the amount can be withdrawn by the appellants. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks