Kerala High Court

Fayiz (Minor) vs Anvar Shajath K.A on 17 January, 2025

MACA 151/2014


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                                                                 2025:KER:3542

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT
             THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
    FRIDAY, THE 17TH DAY OF JANUARY 2025 / 27TH POUSHA, 1946
                              MACA NO. 151 OF 2014
         OPMV NO.437 OF 2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
                               WAYANAD, KALPETTA

APPELLANT/PETITIONER

             FAYIZ (MINOR), AGED 16 YEARS,
             DATE OF BIRTH 27.12.1997, S/O.ABDUL NAZAR,
             REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN, MOTHER
             SOUDA NAZAR, W/O.ABDUL NAZAR, AGED 38 YEARS, PANGIL
             HOUSE, ARAMANGALAMCHAL, RIPPON-52 POST, MEPPADI,
             VYTHIRI TALUK.

             BY ADV SMT.CELINE JOSEPH


RESPONDENT/RESPONDENTS

     1       ANVAR SHAJATH K.A, AGED 35 YEARS
             S/O.ABDUL MOOSA, KOPPILAKKAL HOUSE, THINAPURAM,
             MEPPADI POST, WAYANAD DISTRICT-673121

     2       THE BRANCH MANAGER,
             NEW INDIA ASSURANCE COMPANY LTD., MGT BUILDINGS,
             KALPETTA NORTH, WAYANAD-673122.

             BY ADVS.
             LAL K.JOSEPH
             SURESH SUKUMAR
             ANZIL SALIM
      THIS      MOTOR        ACCIDENT    CLAIMS    APPEAL    HAVING      BEEN
FINALLY      HEARD      ON    6.1.2025,    THE    COURT     ON     17.01.2025
DELIVERED THE FOLLOWING:
 MACA 151/2014


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                                                      2025:KER:3542

                             JUDGMENT

Dated : 17th January, 2025

This is an appeal filed by the petitioner in OP(MV) 437/2011

on the file of the Motor Accidents Claims Tribunal, Kalpetta. The

petitioner filed the above OP under Section 166 of the Motor

Vehicles Act claiming compensation for the injuries sustained in the

motor vehicle accident that occurred on 25.7.2011. According to

the petitioner on 25.7.2011 at about 4.30 p.m. he was hit down by

an autorickshaw bearing registration No.KL11X/1133 while he was

walking through Rippon - Arappetta public road. The accident

occurred due to the rash and negligent driving of the autorikshaw

by the 1st respondent. The 2nd respondent is the insurer of the

autorickshaw.

2. The 2nd respondent, who alone contested the matter,

filed written statement admitting the policy, but alleging that the

accident occurred due to the negligence of the petitioner.

3. The evidence in the case consists of Exts.A1 to A10 and

C1. Though the petitioner claimed a compensation of Rs.2,50,000/-,

the Tribunal awarded only Rs.51,200/-. Aggrieved by the above

Award, the petitioner preferred this appeal. Now the point that

arise for consideration is the following :

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Whether the compensation awarded by the Tribunal is just

and reasonable ?

4. Heard both sides.

5. The petitioner was a 14 year old minor at the time of the

accident. The Tribunal has fixed the petitioner's monthly income at

Rs.1250/-, for arriving at the impugned award. Relying upon the

decision of the Hon'ble Supreme Court in Mallikarjun v.

Divisional Manager, National Insurance Company Limited

and Another, 2014 14 SCC 396, it was argued that since the

petitioner sustained disability below 10%, he is entitled to get a

compensation of Rs.1,00,000/- towards pain and suffering, loss of

amenities etc. At the time of arguments, the learned counsel for the

2nd respondent also fairly conceded that the decision in

Mallikarjun (supra) will apply to the facts of this case.

6. Paragraphs 12 and 13 of the decision in Mallikarjun

(supra), which is relevant here, is extracted below for reference.

"Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it

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should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick.

In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows : -

                         Head                                 Compens
                                                              ation
                                                              amount
                         Pain and suffering                    Rs.3,00,000
                         already undergone
                         and to be suffered in
                         future, mental and
                         physical       shock,
                         hardhip,
                         inconvenience, and
                         discomforts      etc.,
                         and      loss      of
                         amenities in life on
                         account            of
                         permanent disability
                         Discomfort,                          Rs.25,000
                         inconvenience and
                         loss of earnings to
                         the parents during
                         the     period   of
                         hospitalization
                         Medical         and                  Rs.25,000
                         incidental expenses
                         during the period of
                         hospitalization  for
                         58 days
                         Future       medical                 Rs.25,000
                         expenses         for
                         correction of the
                         mal      union     of
                         fracture        and
                         incidental expenses
                         for such treatment
                         Total                                Rs.3,75,000

6. In this case, as per Ext.C1 disability certificate, the

disability of the petitioner is assessed at two different heads as per

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two different scales namely 2% disability as per the McBride scale

and 5% as per the National Institute of Orthopedically

Handicapped scale (NIOH). As per the decision in Mallikarjun

(supra), a compensation of Rs.1,00,000/- is to be granted if the

disability of the child is up to 10%. Therefore, the petitioner herein

is entitled to get a sum of Rs.1,00,000/- for pain and suffering, loss

of amenities etc.

7. As per the above decision, a sum of Rs.25,000/- is seen

awarded towards discomfort, inconvenience and loss of earnings to

the parents during the period of hospitalisation of the child.

Considering the facts, in the instant case also a sum of Rs.25,000/-

is awarded on the head discomfort, inconvenience and loss of

earnings to the parents during the period of hospitalisaton of the

child.

8. It was further contended that the parents of the

petitioner spent a sum of Rs.22,500/- towards cost of medicine and

expenditure, another Rs.1100/- towards bystander expense,

Rs.1500/- towards transportation expense and Rs.1100/- towards

extra nourishment and as such, they are entitled to get the above

amounts also. Since the above amounts were actually spent by the

parents of the petitioner, the petitioner is entitled to get the above

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amounts also as part of the compensation. Therefore, the

petitioner/ appellant is entitled to get a total compensation of

Rs.1,51,200/-, as modified and recalculated above and given in

the table below, for easy reference.

                Head                                    Compensati
                                                        on amount
                Pain and suffering already                  Rs.1,00,000
                undergone and to be
                suffered in future, mental
                and      physical    shock,
                hardhip,    inconvenience,
                and discomforts etc., and
                loss of amenities in life on
                account    of    permanent
                disability
                Discomfort, inconvenience               Rs.25,000
                and loss of earnings to the
                parents during the period
                of hospitalization
                Medical and incidental                  Rs.22,500 +
                expenses    during    the               Rs.1100+
                period of hospitalization               Rs.1500+
                for 58 days                             Rs.1100 =
                                                        26200
                Future medical expenses                 Nil
                for correction of the mal
                union of fracture and
                incidental expenses for
                such treatment
                Total                                   Rs.1,51,200

20. In the result, this Appeal is allowed in part, and the 2 nd

respondent is directed to deposit a total compensation of

Rs.1,51,200/- (Rupees one lakh fifty one thousand two hundred

only), less the amount already deposited, if any, along with interest

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as ordered by the Tribunal, from the date of the petition till

realisation, excluding interest for a period of 285 days, the period

of delay in filing the appeal, with proportionate costs, within a

period of two months from today (interest for the enhanced amount

is limited to 8%).

21. On depositing the aforesaid amount, the Tribunal shall

disburse the entire amount to the petitioner, excluding court fee