Aboobacker Siddique (Minor) (represented by Tahira) v. Mohammed T.B., The New India Assurance Co. Ltd., and Mathai

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 20TH DAY OF DECEMBER 2017 / 29TH AGRAHAYANA, 1939** **MACA.No. 1624 of 2012** **AGAINST THE AWARD IN OPMV 2152/2005 of M.A.C.T.,PERUMBAVOOR** ## **APPELLANT/PETITIONER** **ABOOBACKER SIDDIQUE (MINOR) S/O.ISMAIL, VATHELIL HOUSE, MANJAPETTY, MARAMPALLY, REPRESENTED BY MOTHER AND GUARDIAN TAHIRA, W/O.ISMAIL, VATHELIL HOUSE, MANJAPETTY, MARAMPALLY.** **BY ADV.SRI.K.K.MOHAMED RAVUF** ## **RESPONDENTS/RESPONDENTS:** ## **1. MOHAMMED T.B.** ## **S/O.BEERAN, THANAGATHIL HOUSE, MALIYAKAPADY,** **EDATHALA.P.O.** **2. THE NEW INDIA ASSURANCE CO.LTD.** **KODAVATH SHOPPING COMPLEX, SUB JAIL ROAD, ALUVA.** **3. MATHAI** **S/O.XAVIER, THUNDATHIL HOUSE, NEAR EXCISE RANGE OFFICE, ALUVA.** **R2 BY ADV. SRI.M.RAJAGOPALAN R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20-12-2017, ALONG WITH M.A.C.A. No. 1625/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** **============================== M.A.C.A.Nos. 1624 & 1625 of 2012** **============================== Dated this the 20[th] day of December, 2017** ## **JUDGMENT** ## **Abdul Rehim, J.** Since both the above appeals arose from a common award, they were considered together and disposed of through this common judgment. 2. M.A.C.A. No.1624/2012 is against the award in O.P. (MV)No. 2152/2005 and M.A.C.A. No. 1625/2012 is filed against the award in O.P.(MV) No.2448/2005. The minor claimants, who sustained injuries in the accident, are challenging the award on the ground that the quantum of compensation determined in both the cases are insufficient and inadequate. 3. The accident in question occurred on 16.9.2005. MACA 1835/2013 2 The appellants were travelling on the pillion of a motor cycle ridden by their father, along with their mother. At the spot of the accident, a tempo van collided with the motor cycle. Father of the appellants died due to the injuries sustained. Mother was also got injured in the accident. 4. One of the main challenge is against the reduction effected by the Tribunal in the amount of compensation determined, based on the finding of contributory negligence on the part of the rider of the motor cycle. The Tribunal found that the rider of the motor cycle was also negligent in causing the accident and apportioned the extent of contributory negligence at 75%:25% between the driver of the tempo van and the rider of the motor cycle. Consequently, the Tribunal found that, the appellants will be entitled to get only 75% of the amount of compensation determined. 5. Learned counsel for the appellant contended that, MACA 1835/2013 3 the decision of the Tribunal on the above said aspect is illegal and erroneous because, with respect to the appellants the case is one of composite negligence. They are entitled to sue against any one of the tortfeasors. The legal position remaining settled through a decision of the Hon'ble Supreme Court in **Khenyei v. New India Assurance Co.Ltd. [ (2015) 9 SCC 273]** was brought out to the notice of this court. It is held that, in a case of composite negligence even if one of the joint tortfeasors alone is impleaded by the claimant, he would be obliged to make full payment of compensation and the non-impleadment of the other joint tortfeasor cannot be taken as a defence to reduce the compensation. It is held that, in such cases it is the joint and several liability and the entire compensation can be awarded against the sole impleaded tortfeasor. 6. We are of the opinion that the above said dictum will squarely apply in the case at hand. As far as the appellants MACA 1835/2013 4 herein are concerned, they were travelling on the pillion of the motor cycle and it cannot be said that they have contributed in any manner in causing the accident. Therefore, the appellants are entitled to seek compensation from any one of the tortfeasors. Hence, we are inclined to interfere with the award to the extent of the finding that the claim need to be reduced 25%. 7. Now we will deal with the quantum of compensation in each of the cases separately; ## **i) M.A.C.A. No. 1624/2012(OP(MV)No.2152/2005)** The appellant was a student of II Standard, aged 7 years at the time of the accident. He sustained closed fracture on the middle third of shaft of tibia on left side. He continued treatment as inpatient for a considerable period and thereafter continued treatment as out patient. Learned counsel for the appellant pointed out that, the Tribunal had failed to award anything towards compensation for the loss MACA 1835/2013 5 of his studies. Considering the severe nature of injuries sustained, we are sure that the appellant might have lost studies for a considerable period. We are inclined to award a sum of Rs.10,000/- on that head. It is further pointed out that, the amount of attendant's charges awarded by the Tribunal is too low. We are inclined to increase the same by a further amount of Rs.1400/-. The amounts awarded under the heads of pain and sufferings and loss of amenities are on the lower side, is the contention. We think it appropriate to award a sum of Rs.15,000/- and Rs.10,000/-, respectively, under the heads of pain and sufferings and loss of amenities and enjoyments in life. This will entitle the appellant for an enhancement of Rs.7000/- and Rs.6000/-, respectively on those heads. Thus, we are inclined to enhance the total compensation awarded by the Tribunal by a further sum of Rs.24,400/-. ## **ii) M.A.C.A.No.1625/2012 (OP(MV)No. 2448/2005)** MACA 1835/2013 6 The appellant was a minor aged 6 years. He sustained fracture on the shaft of left femur(displaced transverse fracture on the middle third of the shaft) which was managed with internal fixation and cast application. The injuries sustained to the appellant had resulted in partial permanent disability, the extent of which was assessed by PW1, Civil Surgeon (Orthopaedic), Taluk Head Quarters Hospital, Perumbavoor as 7% (whole body). The Tribunal took the notional income of the appellant as Rs.1500/- for computing the compensation under the head of permanent disability. A sum of Rs.12,000/- was awarded towards pain and sufferings and another sum of Rs.8,000/- was awarded towards loss of amenities and enjoyment in life. The learned counsel for the appellant had drawn our attention to the decision of the Hon'ble Supreme Court in **Master Mallikarjun v. Divisional Manager, The National Insurance Company Ltd. & Another [AIR 2014 SC** MACA 1835/2013 7 **736]** . It is held therein that, 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, the appropriate compensation to be awarded in the case of disability upto 10% is Rs.1,00,000/-. We are of the opinion that, following the dictum contained in the decision cited above, the total compensation which can be awarded under the nonpecuniary heads need to to be refixed as Rs.1,00,000/-. It is pointed out that the Tribunal had not awarded any amount towards loss of studies. Considering severity of the injuries sustained, we are of the opinion that a sum of Rs.10,000/- can reasonably be awarded under the head of loss of studies. We take note of the fact that the appellant was treated as inpatient for a period of 18 days. Therefore we are inclined to award a sum of Rs.3,600/-towards MACA 1835/2013 8 attendant's charges. After deducting the amount already awarded, the appellant will be entitled for an enhancement of Rs.2,200/- on that count. We do not find any ground to interfere with the compensation awarded under other heads. Thus, we refix the total compensation for which the appellant is eligible at Rs.1,41,714/-. 8. In the result, the above appeals are allowed in part as follows; (i) The total compensation awarded in O.P. (MV)No.2152/2005 is enhanced by a further sum of Rs.24,400/-. (ii) The Award in O.P.(MV)No.2448/2005 is refixed at Rs.1,41,714/-. (iii) It is declared that both the appellants will be entitled to receive the entire amount of compensation awarded as above. (iv) The amount of compensation determined as above MACA 1835/2013 9 shall carry interest at the same rate as awarded by the Tribunal, from the date of the claim petition, till realisation, along with proportionate costs. (v)The Insurance Company in both the cases shall make payment of the amounts determined, less the amount if any already paid, within a period of two months from the date of receipt of a copy of this judgment. On such deposit, the appellants will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon. ## **Sd/-** **C.K. ABDUL REHIM JUDGE** ## **Sd/-** **SHIRCY V.** **JUDGE** **True copy** **P.S.TO JUDGE** **ks.**