IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 MACA.No. 296 of 2003() ---------------------- OPMV.639/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S):/PETITIONER IN O.P.(MV): ----------------------------------------------- BINIL PAULY (MINOR) AGED 12 YEARS, REPRESENTED BY HIS NEXT FRIEND GUARDIAN FATHER PAULY, ALUKKA HOUSE, KORATTY DESOM, KORATTY KIZHAKKUMMURY VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS 1 AND 2 IN OP (MV): ---------------------------------------------- 1. SHIBU, S/O. PARAMESWARAN, MALLAPARAMBIL HOUSE, VAZHICHAL DESOM, KORATTY DESOM, KORATTY KIZHAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. 2. BRANCH MANAGER, ORIENTAL INSURANCE CO. BRANCH OFFICE, CITY HEIGHTS BUILDING, SOUTH JUNCTION, CHALAKUDY. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO. 296 OF 2003 --------------------------------------------------------- Dated this the 12th day of March, 2009 JUDGMENT Basant, J. The claimant before the Tribunal is the appellant before us. He was a minor child aged 5 years on the date of the accident, i.e. 4.1.1996. He was a student of L.K.G. class. He claimed an amount Rs.2,00,000/- as compensation through his guardian. He had suffered compound depressed fracture of the frontal bone and frontal lobe contusion. He was treated as an inpatient for 14 days. Craniectomy had to be done. The accident had resulted in permanent partial disability which was certified at 15% by PW.2 in Ext.A11 disability certificate. 2. Before the Tribunal, the father of the claimant was examined as PW.1. As stated earlier, the doctor who issued Ext.A11 disability certificate was examined as PW.2. Exts.A1 to A13 series were marked. 3. The Tribunal, on an anxious consideration of the available inputs, came to the conclusion that the appellant is entitled to an amount of Rs.75,000/- as compensation as per the details shown below: M.A.C.A. NO.296/2003 2 i. Pain and suffering :Rs.12,000/- ii. Transportation to hospital :Rs. 2,000/- iii. Medical expenses (against bills produced) :Rs.22,000/- iv. Bystander expenses :Rs. 1,500/- v. Compensation for reduction in earning capacity consequent to disability. (1200x12x15x10/100) :Rs.21,600/- vi. Loss of amenities :Rs.10,000/- vii. Compensation for disfiguration :Rs. 5,900/- --------------- Total :Rs.75,000/- --------------- The said amount was directed to be paid with interest at the rate of 9% per annum. 4. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to raise against the impugned award, learned counsel for the appellant, first of all, contends that no amount has been awarded for temporary disability immediately following the accident and the consequent retardation in the educational career of the appellant. There is M.A.C.A. NO.296/2003 3 no justification for not awarding any amount under this head, contends counsel. 5. Counsel further contends that considering the nature of the injuries suffered by the appellant, the period of inpatient treatment and the surgical procedure undergone, the award of an amount of Rs.12,000/- under the head pain and suffering is inadequate and insufficient. Counsel then contends that the multiplicand reckoned is only Rs.1,200/- and this is definitely incorrect in the light of the fact that from 1994, the Second Schedule to the Motor Vehicles Act permits the drawal of a presumption of prudence that the notional income of a non-earning person can be assumed as Rs.1,250/-per mensem. Counsel then submits that the Tribunal had arbitrarily and without any justification reduced the percentage of disability/reduction in earning capacity from 15% to 10%. This is unjust, contends counsel. The appellant was put on anti epileptic drugs for a long period of time and the trauma suffered in the circumstances has left behind permanent impairment of health of the appellant. Disfiguration has also been caused and Rs.15,900/- awarded under the composite heads loss of amenities and disfigurement is insufficient, contends counsel. 6. We have considered all the relevant inputs. Considering the M.A.C.A. NO.296/2003 4 young age of the appellant at the time of the accident, the nature of the injuries suffered, the period of treatment undergone by the appellant and the nature of the procedures performed on the appellant, the amount of Rs.12,000/- awarded towards pain and suffering is insufficient. We are satisfied that an amount of Rs.15,000/- can safely be awarded under this head. The appellant is, therefore, entitled to an amount of Rs.3,000/- more (15,000/- minus12,000/-). 7. We agree with the learned counsel for the appellant that there is no justification in reducing the multiplicand to an amount lower than Rs.1,250/- accepted in the Second Schedule to the Motor Vehicles Act. We have been taken through the disability certificate, Ext.A11. Lack of concentration and the obligation to undergo long term treatment by anti epileptic drugs is the disability certified. In any view of the matter, we are satisfied that the Tribunal committed no error in reckoning the reduction of earning capacity at 10% , though in Ext.A11, the physical disability is vaguely assessed to be 15%. The reduction of the percentage of disability from 15 to 10 while computing compensation adopting the multiplier - multiplicand method does not, according to us, warrant any interference. M.A.C.A. NO.296/2003 5 8. The injury suffered by the appellant is compound depressed fracture of the frontal bone and frontal lobe contusion. The appellant has to be on anti epileptic drugs for a long period of time. The trauma suffered by him will certainly have adverse impact on the health and well being of the appellant. We are, in the circumstances, satisfied that an amount of Rs.20,000/- under the composite heads loss of amenities and disfigurement shall meet the ends of justice. We are not persuaded to interfere with the amount awarded under the other heads. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.8,000/- as shown below: i. Pain and suffering (15,000 minus 12,000) :Rs.3,000/- ii. Reduction in earing capacity consequent to disability. (1250x12x 15x10/100 minus 21600/-) :Rs. 900/- iii. Compensation for loss of amenities including disfigurement (20,000 minus 15,900) :Rs.4,100/- --------------- Total :Rs.8,000/- --------------- M.A.C.A. NO.296/2003 6 Needless to say, the entire amount of compensation shall bear interest at the rate awarded by the Tribunal. 10. This appeal is allowed in part to the above extent. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO.296/2003 7 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.296/2003 JUDGMENT 12th March, 2009