Abdul Basith vs Sainul Abideen
2021 Latest Caselaw 18884 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
                  MACA NO. 1859 OF 2011
AGAINST THE AWARD IN OPMV 418/2010 OF II ADDITIONAL MOTOR
           ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER IN OP(MV):

         ABDUL BASITH (MINOR)
         REP.BY HIS NEXT FRIEND AND FATHER MUHAMMED KOYA,
         S/O.ABDULLA,, KODI PARAMBATHU HOUSE,
         P.O.POOVATTUPARAMBU,, KOZHIKODE DISTRICT.
         BY ADVS.
         SRI.AVM.SALAHUDDEEN
         SMT.P.Y.SHEHEERA


RESPONDENTS/RESPONDENTS IN OP(MV):

    1    SAINUL ABIDEEN
         PERAPPURATH VADAKKEYIL HOUSE,
         MUTHIRIPPARAMBA,, P.O.VALLUVAMBRAM,
         MALAPPURAM DISTRICT.673 651.
   *2    SHAFI.V.S. S/O.KUNHIMOIDEEN
         VILANGALIL HOUSE, (PO)PUTHOOR,, MALAPPURAM
         DISTRICT.673 636. [DELETED]
         (R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK
         OF THE APPELLANT VIDE ORDER DT.25.3.2019 IN
         IA.1/19 IN MACA 1859/11.)
    3    THE NEW INDIA ASSURANCE CO.LTD.
         MALAPPURAM DISTRICT, CATHOLIC CENTRE, UP HILL,,
         MALAPPURAM DISTRICT.676 505.
         R3 BY ADV LAL K JOSEPH
         ADV. SRI SURESH KUMAR R.
     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.09.2021, THE COURT ON 10.09.2021 DELIVERED
THE FOLLOWING:
 M.A.C.A.No.1859 of 2011
                                     :-2-:




                                 T.R.RAVI, J.
                    --------------------------------------
                        M.A.C.A.No.1859 of 2011
                -----------------------------------------------
                 Dated this the 10th day of September, 2021

                                JUDGMENT

The appellant, who was a minor aged 17 years at the time

of an accident which took place on 08.09.2009, has filed this

appeal seeking enhancement of the compensation that has

been granted by the 2nd Additional Motor Accident Claims

Tribunal, Kozhikode.

2. Heard Sri A.V.M.Salahudeen learned counsel

appearing for the appellant and Sri Suresh Kumar, learned

counsel for the 3rd respondent.

3. On 08.09.2009, while the appellant was travelling in

a bus driven by the 2nd respondent, it met with an accident

involving an autorickshaw. The appellant suffered serious

injuries and was taken to Almas Hospital, Kottakkal from where

he was referred to Medical College Hospital,Kozhikode. He was M.A.C.A.No.1859 of 2011 :-3-:

hospitalised for 57 days. The Medical Board found that the

appellant had 38% disability. The Tribunal fixed the notional

income at Rs.2,000/- and arrived at the compensation for

permanent disability.

4. The contention of the appellant is that the amount of

Rs.2,000/- taken as monthly income is not justified. The

accident happened in 2009, which is five years after the

accident that was considered in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co.Ltd.,

reported in [AIR 2011 SC 2951] by the Hon'ble Supreme

Court wherein the notional income of a coolie during 2004 was

fixed as Rs.4,500/-. Taking into account the fact that the

appellant was aged 17 years at the time of accident, the

notional income should have been fixed at least at Rs.5,500/-

per month; is the contention. Reference is made to the

decision of the Hon'ble Supreme Court in Master Mallikarjun

v Divisional Manager, The National Insurance Co.Ltd. and

Anr. reported in [2013 KHC 4670] to submit that the Hon'ble M.A.C.A.No.1859 of 2011 :-4-:

Supreme Court had in that judgment laid down a structured

formula whereby Rs.4 lakhs was payable to a person who has

suffered between 30% to 50% disability, unless there are

exceptional circumstances to take a different yardstick. In the

judgment in ICICI Lombard General Insurance Co. Ltd. v.

Amith Varghese reported in [2017 (2) KLT 8], a Division

Bench of this Court noticed the observation of the Hon'ble

Supreme Court that in exceptional circumstances a different

yardstick can be adopted and went ahead to decide the case on

different yardsticks, since it was warranted in the facts of the

case. The counsel for the appellant submitted that in the case

on hand, the petitioner was 17 years at the time of the accident

unlike the case that was considered in Mallikarjun (supra)

where the minor was aged 12 years and could not have aspired

for any job at least for 6 years. He has suffered fracture of the

ulna (L), forearm, lacerated wound over left elbow region and

compound injury at the left elbow region. He was initially

admitted on 08.09.2009 and discharged on 27.10.2009 after M.A.C.A.No.1859 of 2011 :-5-:

surgery which was conducted on 15.10.2009. He was again

admitted on 09.02.2010 and discharged on 16.02.2010. The

Tribunal found that the petitioner was 17 years and a non-

earning member and therefore Rs.2,000/- can be taken as

monthly income and followed the multiplier of '18'.

5. On considering the facts of the case, I am of the

opinion that there is nothing wrong in following the multiplier-

multiplicand method in the case. The insurer has also not

challenged the adoption of this method. At the same time, I

am of opinion that Rs.2,000/- which is taken as notional

income was not warranted. If the appellant was aged above 18

years, going by the dictum in Ramachandrappa (supra), the

notional income would have been taken as Rs.7,000/-. Having

regard to the fact that he was only 17 years at the time of

accident, I am of the opinion that the notional income ought to

have been taken as Rs.5,500/- per month. Necessary changes

will have to be made in the compensation payable under the

head permanent disability. So also, even though the appellant M.A.C.A.No.1859 of 2011 :-6-:

was hospitalised for 57 days, bystander's expense has been

granted only for 44 days. The amount granted for bystander's

expenses is also liable to be enhanced. In the result, the

amount granted under the head "bystander's expenses" is fixed

at Rs.8,550/- (150x57), granting an additional sum of

Rs.1950/-. The amount payable under the head "permanent

disability" is fixed at Rs.4,51,440/- (5500x12x18x38/100).

After deducting the amount already granted, the appellant will

be entitled to get an additional amount of Rs.2,87,280/-

under the head permanent disability.

6. In the result, the appellant will be entitled to an

additional amount of Rs.2,89,230/- (Rupees Two Lakhs

Eighty Nine Thousand Two Hundred and Thirty only)

towards enhanced compensation. The 3rd respondent shall

deposit the enhanced compensation awarded by this Court

along with interest at the rate of 9% per annum from the date

of the petition (27.02.2010) till the date of payment, within two

months from the date of receipt of a certified copy of this M.A.C.A.No.1859 of 2011 :-7-:

judgment, after deducting any amount to which the appellant is

liable towards balance court fee and legal benefit fund. The

disbursement of the compensation to the appellant shall be in

accordance with law.

The appeal is disposed of as above.

Sd/-

T.R.RAVI JUDGE dsn