IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY, THE 5^TH DAY OF JULY 2024 / 14TH ASHADHA, 1946 MACA NO. 151 OF 2014 AGAINST THE ORDER/JUDGMENT DATED 29.12.2012 IN OPMV NO.437 OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA APPELLANT/S:

FAYIZ (MINOR)

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/S:

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

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

BY ADVS.

LAL K.JOSEPH SURESH SUKUMAR ANZIL SALIM OTHER PRESENT:

ADV.SRI.LAL K.JOSEPH - R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN ON 05.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 05^th day of July, 2024 The appellant, when he was a minor aged 14 years, sustained injuries in a motor vehicle accident on 25.07.2011. Therefore a claim petition was filed on his behalf seeking compensation of Rs.2,50,000/-. By the impugned award, the Tribunal granted only Rs.51,200/- as compensation. Hence, this appeal.

2. Learned Counsel for the appellant pointedly contended that the injured having been assessed with 2% disability as per the Mc.Bride Scale and 5% as per the NIOH scale, the Tribunal ought to be awarded compensation of Rs.1,00,000/- as special damages, based on the decision in Mallikarjun v National Insurance Co. Ltd [(2014) 14 SCC 396]. It is the submission of the learned Counsel that apart from the amount of Rs.10,000/-, the parents of the injured is liable to be compensated for their inconvenience and loss of earnings, the injuries and resultant hospitalisation having compelled them to refrain from work for three months.

2. Learned Counsel for the Insurance Company fairly admitted that the appellant's case is covered by the decision in Mallikarjun (supra), but opposed the prayer for grant of compensation towards discomfort, inconvenience etc of the parents, as the claim under those heads are also components of special damages. 3. As the thrust of the argument is based on the decision in Mallikarjun (supra), it is apposite to extract paragraphs 12 and 13 of the judgment;

“12. 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 up to 30% to the whole body, Rs 3 lakhs; up to 60%, Rs 4 lakhs; up to 90%, Rs 5 lakhs and above 90%, it should be Rs 6 lakhs. For permanent disability up to 10%, it should be Rs 1 lakh, unless there are exceptional circumstances to take a different yardstick.

13. In the instant case, the disability is to the tune of 18%. The appellant had a longer period of hospitalisation 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 Compensation amount Pain and suffering already Rs 3,00,000 undergone and to be suffered in future, mental and physical shock, hardship, 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 hospitalisation.

Medical and incidental Rs 25,000 expenses during the period of hospitalisation for 58 days.

Future medical expenses Rs 25,000 for correction of the mal union of fracture and incidental expenses for such treatment.

Total Rs 3,75,000 A reading of the above paragraphs makes it clear t