Allowed

Mohammed Abdulla Rifayath C.H (Minor) v. Mohammed Sajid

Kerala HC12 Nov 2013MACA/1194/2011

Case brief

AI extract

What is this about?

The High Court of Kerala enhanced the compensation awarded by the Motor Accidents Claims Tribunal to a minor victim of a road accident. Considering the rise in cost of living, the notional annual income was fixed at Rs. 30,000 instead of Rs. 15,000. Due to severe mental retardation and future care needs arising from head injuries, the disability was treated as 100% for loss of earning capacity cal

What did the court decide?

Additional compensation of Rs. 5,55,000 with 9% interest awarded; deposit directed to be made in a nationalised bank.

Mohammed Abdulla Rifayath C.H (Minor) Vs Mohammed Sajid — Motor Accident Claims | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935

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MACA.No. 1194 of 2011 ( )

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AGAINST THE AWARD IN OPMV 384/2006 of MACT,KASARAGOD DATED 27.04.2011

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APPELLANT(S)/CLAIMANTS:

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1. MOHAMMED ABDULLA RIFAYATH C.H(MINOR) AGED 11 YEARS, S/O.C.H.ABDUL BASHEER, RESIDING AT BADAKAMBATH, CHEMNAD PO, CHEMNAD VILLAGE KASARGODE, TALUK AND DISTRICT.

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2. C.H.ABDUL BASHEER,AGED 55 YEARS, S/O.LATE C.H.ABDUL KHADER,RESIDING AT BADAKAMBATH CHEMNAD PO, CHEMNAD VILLAGE, KASARGODE TALUK AND DISTRICT.

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(THE IST APPELLANT IS A MINOR AND IS REP.BY THE 2ND APPELLANT, HIS FATHER BEING THE GUARDIAN AD-LITUM)

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BY ADVS.SRI.JAWAHAR JOSE

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SMT.CISSY MATHEWS

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RESPONDENT(S)/RESPONDENTS:

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1. MOHAMMAD SAJID,S/O.MOHAMMED ISHAQ, KOTTEKUNNU HOUSE, BEKAL, PALLIKARE VILLAGE HOSDURG TALUK, KASARGODE DISTRICT 671 314.

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2. SULAIMAN ANWAR,S/O.SULAIMAN, KOTTEKUNNU HOUSE, BEKAL, PALLIKARE VILLAGE HOSDURG TALUK, KASARGODE DISTRICT 671 314.

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3. THE UNITED INDIA INSURANCE COMPANY LTD., NITHYANANDA BUILDING, KOTTACHERRY, KANHANGAD PO KASARAGODE DISTRICT , PIN 671 315.

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R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

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MACA.No. 1194 of 2011

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Dated this the 12^th day of November, 2013

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JUDGMENT

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K.Ramakrishnan,J.

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The claimant in OP(MV) No.384/2006 on the files of the Motor Accidents Claims Tribunal, Kasargode is the appellant herein. The unfortunate appellant who was a minor aged 5 years and 7 months at the time of the accident, suffered serious injuries in a motor vehicle accident caused on account of the rash and negligent driving of a vehicle by the 1^st respondent owned by the 2^nd respondent and insured with the 3^rd respondent. He filed the application for compensation through guardian his father for the injuries and disability suffered by him in the accident. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the

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MACA.No. 1194 of 2011 : 2 :

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vehicle by the 1^st respondent and awarded total

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compensation of .2,25,100/- on various heads as follows:-₹

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Transportation Expense	₹.3,000/-
Extra nourishment	₹.5,000/-
Damages to clothingand articles	₹.500/-
Medical Expenses	₹.29,600/-
Expense for bystander	₹.2,000/-
Loss of amenities and enjoyment of life	₹.25,000/-
Pain and suffering	₹.25,000/-
Compensation forpermanent disability	₹.1,35,000/-
Total	₹.2,25,100/-

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Dissatisfied with the quantum of compensation awarded by

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the Tribunal, the appellant has filed this appeal before this court, claiming enhancement.

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Heard counsel for the appellant and counsel for the insurance company.

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Counsel for the appellant submitted that the 1^st appellant sustained severe head injury and he has become a mentally retarded person after the accident. Thought the disability certificate shows that he suffered 78% disability, his whole body disability was fixed as 60%. The Tribunal

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MACA.No. 1194 of 2011 : 3 :

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also convinced that he appears to be a mentally retarded person and having difficult to speak and move freely and inspite of that the Tribunal found only 60% disability. Considering the nature of disability suffered by him, the Tribunal ought to have taken 100% disability for assessing compensation under the head “loss of earning capacity”. Further the child with these difficulties will have to life for the remaining period of his life. He can't do anything and he may require assistance and care throughout his life. So, the amount awarded under the head “ loss of amenities in life” is on the lower side. The amount awarded under the head 'pain and suffering' is also low. So according to the learned counsel for the appellant the 1^st appellant is entitled to enhancement on all heads.

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On the other hand, counsel for the insurance company submitted that the 1^st appellant was aged only 5 years and 7 months at the time of the accident. He is not an earning member. So the Tribunal was perfectly justified

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MACA.No. 1194 of 2011 : 4 :

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in taking 15,000/- per annum as his notional income and₹ rightly taken 60% disability as assessed by the medical board. So, the total compensation awarded ,considering the injuries sustained by the 1^st appellant is just and proper and no interference is called for at the hands of this court.

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We have considered the contentions of both

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parties in detail.

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It is quite unfortunate that the 1^st appellant who was aged only 5 years and 7 months at the time of the accident, suffered severe head injuries and consequentially suffered permanent disability as well, which marred his future completely. It is true that, in the case of young children, it is very difficult to assess compensation under various heads as in the case of earning members. But, at the same time, a pragmatic view has to be taken for the purpose of assessing compensation in the case of child. He suffered severe head injuries and treated as in-patient for long time and suffered mentally retardedness as well, on

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MACA.No. 1194 of 2011 : 5 :

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account of the injury sustained in the accident. The Tribunal awarded only .25,000/- for pain and suffering and₹ we feel that it is on the lower side and we enhance the same to .50,000/- from .25,000/-. ₹ ₹

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In the year 1994, the legislature had fixed notional income of 15,000/- for a non earning member.₹ The accident in this case occurred in the year 2006, as years have passed, cost of living also increased. So, notional income will have to be increased correspondingly considering these aspects. So we fix the notional income of the injured appellant as ₹.30,000/- per annum. The disability certificate shows that he has mental retardedness and visual disability of right eye and he is also weak and difficulty in moving. The Tribunal also satisfied with this condition, which is narrated in para 18 of the award. He is unable to speak properly, move freely, and appears to be mentally retarded person. So, considering these aspects we feel that though the medical board assessed 60% disability,

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MACA.No. 1194 of 2011 : 6 :

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as far as the child is concerned, it will cause 100% disability and it will affect his earning capacity as well. So we are inclined to take 100% disability for assessing compensation under the head ' loss of earning capacity'. If a recalculation is made on this basis the 1^st appellant is entitled to get an amount of .5,40,000/- (30000x12x15x100%) instead of .₹ ₹ 1,35,000/- awarded by the Tribunal. So the 1^st appellant is entitled to get additional compensation of .4,05,000/-under₹ this head and we award this amount under this head. Considering the nature of disability suffered by him, it will have great impact on his personal life as well. In fact, he had lost his amenities in life. As a mentally retarded person, he will have to face difficulties in the remaining period of his life as well. Considering this aspect, the amount of .₹ 25,000/- awarded under the head “loss of amenities” is on the lower side and we enhance the same to .1,50,000/-.₹ The appellant are not entitled to enhancement on other heads. In all the 1^st appellant would get an additional

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MACA.No. 1194 of 2011 : 7 :

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compensation of .5,55,000/- over and above what has₹ been awarded by the Tribunal which the 3^rd respondent insurance company is liable to pay with 9% interest from the date of claim petition till payment. Three months time is granted to them to deposit the amount. The amount shall be deposited in a nationalised bank in the name of the 1^st appellant till he attain maturity with liberty to the 2^nd appellant to withdraw monthly interest acurred for the welfare of the injured child.

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With the above modifications of the impugned award of the Tribunal, the appeal is disposed of.

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Sd/-

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S.Siri Jagan , Judge

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Sd/- K.Ramakrishnan, Judge

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//True Copy//

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PA To Judge

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rmm

Mohammed Abdulla Rifayath C.H (Minor) v. Mohammed Sajid

Case brief

What is this about?

What did the court decide?

Mohammed Abdulla Rifayath C.H (Minor) v. Mohammed Sajid

Case brief

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What did the court decide?

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