Fayiz (Minor) vs Anvar Shajath K.A

C.Pratheep Kumar, J

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.

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.

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 :

Whether the compensation awarded by the Tribunal is just and reasonable ?

Heard both sides.

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.

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 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 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

Rs.3,00,000

Discomfort, inconvenience    and loss  of  earnings  to the   parents   during the period of hospitalization

Rs.25,000

Medical   and incidental   expenses during the period of hospitalization     for 58 days

Rs.25,000

Future  medical expenses  for correction    of    the mal  union  of fracture  and incidental   expenses for such treatment

Rs.25,000

Total

Rs.3,75,000

In this case, as per Ext.C1 disability certificate, the disability of the petitioner is assessed at two different heads as per 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.

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.

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 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 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

Rs.1,00,000

Discomfort,  inconvenience and loss of earnings to the parents  during  the  period of hospitalization

Rs.25,000

Medical    and    incidental expenses during the period   of   hospitalization for 58 days

Rs.22,500 + Rs.1100+ Rs.1500+ Rs.1100 = 26200

Future   medical   expenses for  correction  of  the  mal union    of    fracture    and incidental    expenses    for such treatment

Nil

Total

Rs.1,51,200

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

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.