Ajas Fasal vs United India Insurance Co. Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944** **MACA NO. 3572 OF 2017** **AWARD DATED 14.10.2016 IN OP(MV)NO.399/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/PETITIONER:** AJAS FASAL AGED 18 YEARS S/O.ABDUL ALI, CHALILTHODI VEEDU, MOORKANADU NADPALAM, PO URGATTIRI, MALAPPURAM - 673 639. BY ADV SRI.K.M.MOHAMED ABDURAHIMAN ## **RESPONDENT/3RD RESPONDENT:** UNITED INDIA INSURANCE CO. LTD WHITE LINES, KALLAI ROAD, KOZHIKODE - 673 002(INSURER) BY ADV SRI.P.K.MANOJKUMAR,SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A.No.3572/2017 ## **JUDGMENT** This appeal is carried by the claimant - a minor represented by his father - in O.P.(M.V.) No.399 of 2012 on the files of the Motor Accidents Claims Tribunal, Manjeri. He met with an accident on 12.02.2011, when the motor cycle driven by him dashed against a jeep bearing registration No.KL-7G-3231 and sustained injuries. The injured was aged 12 at the time of accident and obviously, he was not having any driving licence at that time. The appeal is carried essentially on the question of quantum of compensation seeking enhancement. 2. Heard Sri. K.M.M. Abdurahiman Thoppil, learned counsel for the appellant and Sri.P.K.Manoj Kumar, learned Standing Counsel for the respondent/Insurance Company. Perused the records. 3. Learned counsel for the appellant submitted that going by the judgment of the Honourable Supreme Court in **Mallikarjun v. Divisional Manager, National Insurance Company Ltd** _**.**_ _[2013 ACJ 2445]_ , in the case of children having disability up to 10%, a consolidated compensation of Rupees One Lakh can be 3 M.A.C.A.No.3572/2017 reckoned, which has not been done with the Tribunal. The Tribunal reckoned only Rs.70,000/-, corresponding to the disability assessed at the rate of 7%. 4. The second count canvassed by the learned counsel for the appellant is with respect to the finding of the Tribunal regarding contributory negligence on the part of the claimant/minor. Learned counsel would elaborate that though driving a vehicle without licence is an offence attracting penal consequences, inferring contributory negligence on that count is not legal. It is also submitted that the claimant is entitled to expenses for the attendant, extra nourishment and also for transportation. 5. Per contra, learned Standing Counsel for the Insurance Company/respondent submitted that the factum of a minor, aged 12 years, driving a motor cycle, without an enabling licence, resulting in an accident, should not be taken lightly and the same is liable to be viewed seriously, as has been done by the Tribunal. Learned counsel also raised a contention that they are entitled to recover the compensation amount from the owner of the jeep. 6. Having heard the learned counsel appearing on both sides, this Court is inclined to accept the contentions raised by the 4 M.A.C.A.No.3572/2017 learned counsel for the appellant. As rightly pointed by the learned counsel for the appellant, contributory negligence cannot be attributed for want of driving licence. It is one thing to say that law prohibits driving a motor vehicle without any enabling licence. The same is an offence, attracting penal consequences. But, driving a motor vehicle without licence is not a circumstance to draw contributory negligence. In **Halsbury's Laws of England** [3[rd] edition, Volume 28, paragraph 92], the concept of contributory negligence is lucidly depicted thus : _“In an action for injuries arising from negligence, it was a defence at common law if the defendant proved that the plaintiff, by some negligence on his part, directly contributed to the injury in the sense that his negligence formed a material part of the effective cause thereof. When this is proved the plaintiff's negligence is said to be contributory.....”_ The instant case is not one of the negligence per se; instead, it is a case where there is a clear violation of a provision of law. There is nothing to show that the minor drove the vehicle in a negligent manner, which also contributed to the accident. The negligence contemplated in the concept of contributory negligence is real; and not merely imaginary and theoretical, to be drawn from the factual 5 M.A.C.A.No.3572/2017 circumstance that the vehicle was driven without any licence. At the cost of repetition, this Court would reiterate that whatever consequences contemplated in law will follow for violation of law in the matter of driving a vehicle without licence ; but that is no reason to draw an inference of contributory negligence against the minor. Therefore, reduction of 50% of the compensation amount on that count is not legal. This Court should not be misunderstood as downplaying the serious illegal conduct of the minor in driving the vehicle without a licence. All what this Court points out is that the same is not a ground to infer contributory negligence. 7. Learned Standing Counsel for the Insurance Company submitted that inasmuch as there is violation of policy condition, the Insurance Company may be permitted to pay and recover the compensation amount from the owner of the motor cycle. Though not unmindful of the seriousness of the offence, this Court finds it difficult to accede to the request made by the learned Standing Counsel for the Insurance Company. If the compensation is to be recovered from the owner of the motor cycle, who is none other than the father of the minor, it will result in an anomalous situation, where the compensation paid to the minor/son will have to be 6 M.A.C.A.No.3572/2017 recovered from the father of the minor. If the learned counsel for the appellant seeks to recover it from the Company with which the motor cycle was insured, then, the very same vice, that is to say, violation of policy conditions will surface there also. In the circumstances, the contention cannot be accepted. It is so held. 8. On the second count also, going by _Mallikarjun_ (supra) an amount of Rs.1,00,000/- is liable to be reckoned in the case of a minor, who was found with 7% disability by the Medical Board. _Mallikarjun_ (supra) specifies a compensation of Rs.1,00,000/- for disability up to 10%. That being so, Rs.1,00,000/- is liable to be reckoned towards compensation. There is no dispute that the medical bills tantamount to Rs.12,645/-. The claimant is entitled to expenses for attendant @ Rs.350/- per day and he was an inpatient for six days. Thus he is entitled to Rs.2,100/- under that head. Expenses for extra nourishment is also liable to reckoned at the same rate. 9. In the circumstances, the M.A.C.A. is allowed and the compensation amount payable to the claimant/appellant is shown in the tabular statement herein below. 7 M.A.C.A.No.3572/2017 |Sl.<br>No.|Head of claim|Amount<br>awarded by the<br>Tribunal (Rs.)|Amount<br>enhanced by<br>this Court (Rs.)| |---|---|---|---| |1|Loss of earning|Nil|Nil| |2|Partial loss of earning|Nil|Nil| |3|Transport to Hospital|5000|5000| |4|Extra nourishment|1500|2500| |5|Damage to clothing and articles|1000|1000| |6|Bystander expenses|2100|2100| |7|Medical expense|12645|12645| |8|Pain and suffering|20000|Nil| |9|Continuing<br>or<br>permanent<br>disability, if any|70000|100000| |10|Loss of earning power|Nil|Nil| |11|Discomfort, loss of income<br>caused to the parents during the<br>period of hospitalisation|6000|6000| |Total||118245|129245| |Amount enhanced [1,29,245–59,250 (being 50% of Rs.1,18,245)]<br>=**Rs.69,995/-**(Rupees Sixty Nine Thousand Nine Hundred and<br>Ninety Five only)|||| The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time 8 M.A.C.A.No.3572/2017 stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. Sd/- **C. JAYACHANDRAN JUDGE** csl