Kerala High Court
Bimal vs Raju P. Joy on 13 February, 2025
MACA3132/2017
1
2025:KER:11844
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
MACA NO. 3132 OF 2017
OPMV NO.1337 OF 2009 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, ALAPPUZHA
APPELLANT/PETITIONER
BIMAL, AGED 22 YEARS
S/O. MADHUKUTTAN,KULATHIL PUTHENVELI,WARD NO.3
PUNNAPRA SOUTH PANCHAYATH, PUNNAPRA P.O.
BY ADVS.
SMT.P.K.PAMALA
SRI.C.D.DILEEP
RESPONDENTS/RESPONDENTS
1 RAJU P. JOY
S/O JOSEPH,PADINJARE PARAMBIL HOUSE, WARD
NO.VIII,THAKAZHY PANCHAYATH,KELAMANGALAM
2 THE UNITED INDIA INSURANCE CO. LTD.
BRANCH NO.111,SHARANYA,GROUND FLOOR,HOSPITAL
ROAD,ERNAKULAM
BY ADV P.K.SANTHAMMA-SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 7.2.2025, THE COURT ON 13.2.2025 DELIVERED THE
FOLLOWING:
MACA3132/2017
2
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JUDGMENT
Dated : 13th February, 2025
The petitioner in OP(MV).1337/2009 on the file of the Motor
Accidents Claims Tribunal, Alappuzha is the appellant. The petitioner filed
this OP under Section 166 of the Motor Vehicles Act ('M.V.Act' for short)
claiming compensation for the injuries sustained in a motor vehicle accident
that occurred on 21.7.2009.
2. The petitioner was a 11 year old child at the time of the accident.
According to the petitioner, on 21.7.2009 at about 10.30 a.m while he was
riding pillion on a scooter through the National Highway near Paravoor
junction, a Santro car bearing registration No.KL-4/X 7543 driven by the 1 st
respondent in a rash and negligent manner hit against the scooter and as a
result of which, the petitioner and the rider fell down and sustained serious
injuries.
3. In the accident, the petitioner suffered a crush injury on his left
knee with a fracture of femur and artery along with multiple lacerations and
scamental loss of fibula with vascular injury. Due to the severity of the
injuries suffered by the petitioner, his left leg had to be amputated below the
knee. As per Ext.X1 disability certificate issued by the medical board of
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Medical College hospital, Alappuzha, the permanent physical disability
of the petitioner was assessed as 60%. One among the members of the
Medical Board was examined as PW1 and he opined that though the
petitioner may not have any problems in attending office works, since
his left knee was amputated below the knee, he cannot engage himself in
any job which requires physical exercise.
4. The Tribunal assessed the loss of disability of the petitioner
as Rs.5,40,000/- assuming that his notional income including future
prospects is Rs.5000/-. The total compensation awarded by the Tribunal
as Rs.8,04,800/-. Being dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner preferred this appeal.
5. One of the contentions raised by the learned counsel for the
petitioner is that the notional income of the petitioner fixed by the
Tribunal is on the lower side. On the other hand, the learned counsel for
the 3rd respondent Smt.P.K.Santhamma would argue that since the victim
was aged 11 years and the percentage of disability is 60%, in the light
of the dictum laid down by the Hon'ble Supreme Court in Master
Mallikarjun v. Divisional Manager, National Insurance Co.Ltd. &
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Another, 2013 ACJ 2445, the compensation on the head 'loss of
disability' that could be awarded was only Rs.4,00,000/-. It was argued
that in the instant case, the Tribunal has awarded more than what is due
to the petitioner and as such, there is no scope for any interference in the
Award passed by the Tribunal.
6. It is true that as per the decision in Mallikarjun (supra) in
the case of children below 15 years of age, unless there is exceptional
circumstances, the dictum laid down in the above decision is to be
followed. In the instant case, though the victim is a 11 years old boy, on
the date of accident, he sustained very serious injuries and due to the
severity of the injuries, his left leg below the knee had to be amputated.
The Medical Board assessed his permanent physical disability at 60%.
In the above circumstances, the present case is to be treated as an
exceptional case, as in this case, just and reasonable compensation could
not be awarded by following the dictum laid down in the decision in
Mallikarjun (supra).
7. In exceptional cases, the Hon'ble Supreme Court as well as
this Court, have taken the multiplier system for awarding just and
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reasonable compensation to victims below the age of 15. In the decision
in Kajal v. Jagadish Chand, AIR 2020 SC 776, a 12 year old girl
suffering from 100% disability, the loss of disability was assessed by
applying the multiplier 16. In the decision in Vivek G. v. National
Insurance Co.Ltd., 2023 KHC 2941, the right leg of a 12 year old child
was amputated in consequence of the injury sustained in a motor vehicle
accident that occurred in the year 2011. In that case, the notional income
of the child was fixed by the Hon'ble Supreme Court at Rs.10,000/- and
50% of the income was added towards future prospects. In addition to
the same, towards the cost of prosthesis and its maintenance, a sum of
Rs. 26,00,000/- was awarded which includes Rs.20,00,000/- being the
value of four prosthesis and Rs.6,00,000/- for its maintenance. It is true
that in the above case, the permanent physical disability of the child was
assessed as 97%.
8. In the instant case since the child was aged 11 and the
accident was occurred in 2009, I hold that for the purpose of assessing
the loss due to disability, his notional income is to be fixed at least as
that of a Coolie during that year. As per the decision of the Hon'ble
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Supreme Court in Ramachandrappa v. Manager, Royal Sundaram
Alliance, (2011) 13 SCC 236 (DB), the notional income of a Coolie during
the year 2009 will come to Rs.7000/-. Therefore the notional income of the
petitioner is fixed as Rs.7000/-.
9. Since the petitioner was aged 11 on the date of the accident, 40%
of the income is liable to be added towards future prospects in the light of the
decision in National Insurance Co.Ltd v Pranay Sethi, (2017) 16 SCC 680
and the multiplier to be applied is 15 in the light of the decision in Sarla
Verma v. Delhi Transport Corporation, (2009) 6 SCC 121. Therefore, the
loss of earning will come to Rs.10,58,400/-.
10. The Tribunal has not awarded any amount towards the cost
of prosthesis required by the petitioner. Along with I.A.1/2024, the
petitioner has produced a quotation dated 18.10.2024 showing that the
cost of below knee prosthesis with endoskeletal shank, Carbon High
Activity Energy Storing Foot (AVALON FOOT) Foot, silicon Liner with
Shuttle Lock, Moulded Polypropylene socket is Rs.7,56,000/-.
Thereafter, along with I.A.2/2025 she has produced another quotation
dated 25.1.2025 showing the cost of a prosthesis as Rs.16,55,000/-. It
shows that the life of a prosthesis is five years and approximate cost of
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maintenance per year will come to Rs.35,000/-. Those two quotations
are marked as Exts.A16 and 17 respectively, for reference.
11. The reason why Ext.A17 was produced, after the production
of Ext.A16, is not properly explained. The value of the prosthesis in
Ext.A17 is much more than that in Ext.A16. It is true that since the
victim was aged 11 on the date of the accident and now he is about 27
years old and usually the life of a prosthesis is five years, he requires a
considerable amount towards the cost of prosthesis. So far, no amount
was awarded towards the cost of prosthesis.
12. In the above circumstances, as in the case of Vivek (supra), a
sum of Rs.20,00,000/- can be awarded to the petitioner being the cost of
4 prosthesis at the rate of Rs.5,00,000/- and a sum of Rs.6,00,000/- can
be awarded for the maintenance of the prosthesis.
13. Towards pain and sufferings and loss of amenities, the
Tribunal has awarded only Rs.75,000/- and Rs.1,00,000/- respectively.
Considering the facts, I hold that compensation awarded on those heads
are on the lower side and hence they are enhanced to Rs.2,00,000/- each.
14. Towards academic loss only Rs.9000/- was awarded.
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Considering the facts, I hold that the compensation awarded on the
above head is also on the lower side and hence it is enhanced to
Rs.50,000/-.
15. The compensation awarded on other heads appears
reasonable. Therefore, the petitioner/appellant is entitled to get a total
compensation of Rs.41,89,200/-, as modified and recalculated above and
given in the table below, for easy reference.
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal
(in Rs.)
1 Compensation for academic loss 9000 50000
for three months
2 Transport to hospital and back to 2500 2500
home several times
4 Extra nourishment 11000 11000
5 Treatment charges including 55800 55800
medicine etc.
Bystanders expenses 11000 11000
6 Compensation for pain and 75000 200000
sufferings
7 Compensation for continuing or 540000 1058400
permanent disability
8 Compensation for loss of 100000 200000
amenities in life
9 Towards cost of 4 prosthesis Nil 20,00,000
10 For maintenance of prosthesis Nil 6,00,000
Total 8,04,800 41,89,200
Amount enhanced 33,84,400
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16. In the result, this Appeal is allowed in part, and respondent No. 2
is directed to deposit a total sum of Rs .41,89,200/- (Rupees forty one lakh
eighty nine thousand two hundred only), less the amount already deposited,
if any, along with interest as ordered by the Tribunal, with proportionate
costs, within a period of two months from today.(interest for the enhanced
compensation is limited to 8% )
On depositing the aforesaid amount, the Tribunal shall disburse the
entire amount to the petitioner, excluding court fee payable, if any, without
delay, as per rules.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/10.2.25
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PETITIONER ANNEXURES
Annexure A1 THE ORIGINAL COPY OF THE QUOTATION DATED
18.10.2024 ISSUED BY 'PATNAIKS
PROSTHETICS AND ORTHOTICS SOLUTION'
Annexure A2 ORIGINAL COPY OF THE QUOTATION DATED
25.01.2025 ISSUED BY 'PATNAIKS
PROSTHETICS AND ORTHOTICS SOLUTION'
SHOWING THE DESCRIPTION OF THE
ENDOSKELETAL BELOW KNEE PROSTHESIS
( ARTIFICIAL LIMB) WITH ITS TOTAL COST OF
RS. 16,55,000/- ( SIXTEEN LAKHS FIFTY
FIVE THOUSAND ONLY)
