IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 MACA.No. 1470 of 2011(E) ---------------------------------- OPMV.632/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT: PETITIONER -------------- M.SHIVAPRASAD, AGED 22 YEARS, THACHEZHUTHU HOUSE, KIZHAKKAN KOVIL, P.O.NILESWAR, KASARAGOD DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT: RESPONDENT NO.3 --------------- THE NEW INDIA ASSURANCE CO.LTD; RAMA BHAVAN COMPLEX, KODIALBAIL, MANGALORE, PIN 575 002. ADV. SMT.M.HEMALATHA FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** M.A.C.A No.1470 of 2011 ***************************** Dated this the 8th day of November, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He, a minor child, aged 10 years, represented by his father, claimed compensation for personal injuries suffered by him in a motor accident which took place on 21.12.1995. He had suffered multiple injuries including fractures. He had suffered head injury. He had allegedly suffered permanent disability. There was physical as well as psychological disability. The Tribunal sent the claimant/appellant to the Medical Board. Ext.X1, X2 and X4 certificates were secured by the Tribunal. CW1 who issued Ext.X4 was examined as a court witness. The claimant/child had allegedly suffered disability. The court witness was examined. CW1 asserted before court that the disability has been assessed to be 50% as per the Persons With Disability Act. The Tribunal, by the impugned award, against a total claim limited to Rs.10 lakhs, awarded an amount of Rs.2,71,300/- as compensation as per details given in the summary of claims appended to the impugned award, which we extract below: M.A.C.A No.1470 of 2011 2 Sl.No. Head of claim Amount awarded 1 Medical and miscellaneous expenses Rs. 30,000.00 2 Transportation expenses Rs. 4,000.00 3 Extra nourishment Rs. 7,000.00 4 Damage to clothing etc. Rs. 300.00 5 Pain and suffering Rs. 20,000.00 6 Loss of amenities and conveniences etc. Rs. 10,000.00 7 Any other heads. Compensation for continuing or permanent disability Rs.2,00,000.00 (inclusive of claim under the loss/reduction in earning capacity) Total Rs.2,71,300/- The insurance company has been made entirely liable under the impugned award. 2. We have heard the learned counsel for the appellant/claimant and the learned counsel for the respondent/insurance company. Challenge is raised only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant primarily assails the impugned award on two grounds. The learned counsel argues that only a global lump sum amount of Rs.2 lakhs has been awarded under the head of continuing permanent disability. The multiplier- multiplicand method has not been pressed into service. A global M.A.C.A No.1470 of 2011 3 amount of Rs.2 lakhs has been awarded without taking into account the probable monthly earnings of the child. The multiplier has not been ascertained. In these circumstances, the first contention is raised that the quantum of compensation has to be properly computed for loss of earning capacity. 4. It is next contended that the child was aged 6 years at the time of the accident. The physical disability has now been assessed to be 50%. It is important to note that the accident had taken place as early as in 1995 and Ext.X4 mental condition report was issued by CW1 as late as on 31.12.2007. The amount of compensation awarded under the head of loss of amenities and conveniences is painfully low (Rs.10,000/-), contends the learned counsel for the appellant. 5. The learned counsel for the appellant further contends that no amount has been awarded under the head of bystander's expenses even though the child had to undergo treatment as an inpatient for a period of 15 days. Thereafter also, the child had to undergo treatment as an outpatient. Since the disability is assessed at 50%, the claimant would require the assistance of a bystander/helper even thereafter. No amount of compensation has been awarded under the head of bystander's M.A.C.A No.1470 of 2011 4 expenses, laments the learned counsel for the appellant. 6. We have considered all the relevant inputs. We find it safe to come to a conclusion that 50% physical disability has been suffered by the claimant as revealed from Ext.X4 as also the oral evidence of CW1, which the Tribunal appears to have accepted. Having held so, we think it was incumbent on the Tribunal to ascertain the quantum of compensation payable under the head of reduction in earning capacity. Going by the Second Schedule to the Motor Vehicles Act, 15 can safely be reckoned as the multiplier applicable in cases of permanent disablement. 7. We then come to the monthly earnings of the claimant. He had not started earning. He was only a child, aged 6 years at the time of the accident. The learned counsel for the appellant relies on clause 6 of the Second Schedule to the M.V Act to contend that in a claim under Section 163A, the Tribunals have been permitted to draw an inference of prudence that even a non earning person must have been earning an income of Rs.1,250/- per mensem. That presumption applicable to claims under Section 163 A was brought in as early as in 1994. Considering all the relevant circumstances, an appropriate M.A.C.A No.1470 of 2011 5 amount of compensation deserves to be awarded under the head of reduction in earning capacity, contends the learned counsel for the appellant. We agree with the learned counsel. 8. For loss of amenities, only an amount of Rs.10,000/- has been awarded. Disability suffered by an individual leaves behind two fold reflections on his life. It reduces his earning capacity. It also reduces and impairs the quality of enjoyment of live which the victim can aspire to lead thereafter. Considering the young age of the child and the nature of the disability, we are satisfied that an appropriate amount of compensation deserves to be awarded under the head of loss of amenities. 9. Under the head of bystander's expenses, no amount has been awarded. He was an inpatient for a period of 15 days. We agree that subsequently also the child must have needed the assistance of a bystander. We are satisfied that a total amount of Rs.10,000/- can be awarded under the head of bystander's expenses. 10. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.1,70,000/- as compensation as shown below in addition to the amount of compensation already awarded by the Tribunal under the M.A.C.A No.1470 of 2011 6 impugned award. i) Bystander's expenses : Rs.10,000.00 (no amount awarded by the Tribunal) ii) Reduction in earning capacity : Rs.70,000.00 (3000X12X15X50/100 = 2,70,000 minus 2,00,000) iii) Loss of amenities : Rs.90,000.00 (1,00,000 minus 10,000) ........................ Total : Rs.1,70,000.00 ========= 11. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.1,70,00/- (Rupees One lakh seventy thousand only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) We make it clear that the appellant is paid proportionate cost for the proceedings before the Tribunal on the entire amount of compensation awarded as held in Jeena V. M.A.C.A No.1470 of 2011 7 Satheesh Babu.K [2011(3) KLT 943] ; e) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (V.CHITAMBARESH, JUDGE) rtr/ M.A.C.A No.1470 of 2011 8 R.BASANT & V.CHITAMBARESH, JJ. *********************** C.M.Appl.No.2257 of 2011 in M.A.C.A No.1470 of 2011 ***************************** Dated this the 8th day of November, 2011 ORDER BASANT, J. This petition is to condone the delay of 326 days in filing the appeal. Claimant/appellant is a minor child. Heard. We take a lenient view. 2. Petition allowed. Delay condoned. (R.BASANT, JUDGE) (V.CHITAMBARESH, JUDGE) rtr/