Arun v. Joymon V.V. and ors

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 10[TH] DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943 ``` ## `MACA NO. 1424 OF 2011` ``` AGAINST THE AWARD DATED 30.04.2011 IN OP(MV)NO.2682/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRISSUR. ``` ## `APPELLANT/PETITIONER:` ``` ARUN, S/O. UNNIKRISHNAN, NOTTATHE HOUSE, PUNNAMPARAMBE, THEKKUMKKARA P.O., THRISSUR DISTRICT. ``` ``` BY ADVS.SRI.C.HARIKUMAR SMT.V.V.ASHA ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1JOYMON V.V., S/O. VARGHESES, VANDERATHOTTATHIL HOUSE, KATTILAPPORVAM P.O., THRISSUR-680631 ``` ``` 2V.V.ELIAS, S/O.VARGHESE, VANDERATHOTTATHIL HOUSE, KATTILAPPORVAM P.O., THRISSUR-680631 ``` - `3 UNITED INDIA INSURANCE COMPANY LTD, DIVISIONAL OFFICE, KURUPPAM ROAD, THRISSUR-680003` - `4 UNNIKRISHNAN N, NOTTATHE HOUSE, P.O THEKKUMKARA, KERALA-680608` - `5 RAGHUNATHAN, S/O.GOPINATHAN NOTTATHE HOUSE, THEKKUMKARA P.O., KOLAPURAMANGAOLAM PUNNAMPARAMBE, THRISSUR-680608` - `6 UNITED INDIA INSURANCE COMPANY LTD PARK HOUSE, ROUND NORTH, THRISSUR-680003` ``` BY ADV SRI.PMM.NAJEEB KHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1424/2011 -:2:- Dated this the 10[th] day of February,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.2682/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant, who had just attained majority, had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the injuries sustained to him in an accident on 02.08.2004. It was his case that, on the above day, while he was travelling pillion on a motorcycle bearing registration No.KL-8/AA-6058 through the Kundukad-Kattilapoovam road, ridden by the fifth respondent, a jeep bearing registration No.KBR-3904(jeep), driven by the second respondent in a rash and negligent manner, hit the motorcycle on which the appellant was travelling. The appellant M.A.C.A.No.1424/2011 -:3:- sustained multiple injuries, including a compound comminuted fracture of both bones of his right leg with compartmental syndrome. He was treated as an inpatient for a period of 30 days at the Medical College Hospital and Aswini Hospital, Thrissur. The jeep was owned by the first respondent and insured with the third respondent. The motorcycle was owned by the fourth respondent and insured with the sixth respondent. The appellant was a second year Arts student, who fixed his monthly notional income at Rs.4,000/-. The appellant claimed a compensation of Rs.4,50,000/- from the respondents. 3. Respondent Nos.1, 2, 4 and 5 did not contest the proceedings and were set ex parte. Although the sixth respondent entered appearance, they did not file any written statement. 4. The third respondent had filed a written statement denying the allegations in the claim petition. M.A.C.A.No.1424/2011 -:4:- However, the third respondent admitted that the jeep had a valid insurance coverage. 5. The appellant had produced and marked Exts.A1 to A13 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,33,000/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. C.Harikumar, the learned counsel for the appellant and Sri. PMM.Najeeb Khan, the learned counsel appearing for the respondents 3 and 6. 9. The sole question that arises for M.A.C.A.No.1424/2011 -:5:- consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A2 Final report filed by the Wadakkancherry police in Crime No.353/2004 proves that the accident was caused due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the jeep. The respondents 1 to 3 have not let in any evidence to discredit Ext.A2 Final Report. The third respondent has not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Compensation:** 11. As per Ext.A12 Secondary School Leaving M.A.C.A.No.1424/2011 -:6:- Certificate, the appellant was born on 28.05.1986. The accident occurred on 02.08.2004. Thus, just prior to the date of accident, the appellant had attained majority. 12. In **Master Mallikarjun v. Divisional Manager, the National Insurance Company Ltd. & Anr.** [(2014) 14 SCC 396], the Hon’ble Supreme Court has fixed a compensation to be awarded in the case of injuries caused to children. Since the appellant had just attained majority and was still a student, I am inclined to follow the principles laid down in **Master Mallikarjun** (supra) to the case at hand. 13. As per Ext.A7 disability certificate issued by the Associate Professor of Orthopedics, Medical College Hospital, Thrissur, the appellant has suffered a ‘permanent disability’ of 13%. 14. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has M.A.C.A.No.1424/2011 -:7:- categorically held that, what needs to be looked into in an injury claim, is the functional disability of the injured/claimant. 15. As per Ext.A7, it is seen that the appellant’s disability was assessed at 3% due to the mal-union, 3% due to the knee stiffness, 2% due to loss of power of the right thigh, 3% due to the ankle stiffness and 2% due to the loss of power of the right calf. 16. On a consideration of Ext.A7 and the principles laid down in **Rajkumar** (supra), I am inclined to fix the functional disability of the appellant at 9%. 17. In **Master Mallikarjun** (supra), the Hon’ble Supreme Court has held that in the case of disability below 10%, a consolidated amount of Rs.1,00,000/- is to be awarded as loss due to disability, in addition to the actual expenditure for the treatment and attendant charges. Thus, I award the appellant a consolidated M.A.C.A.No.1424/2011 -:8:- amount of Rs.1,00,000/-, towards for loss due to disability. 18. It is seen that the Tribunal has awarded Rs.3,000/towards ‘transportation expenses’, Rs.2,000/- towards ‘extra nourishment’, Rs.3,000/towards ‘bystander expenses’, Rs.65,405/- towards ‘medical expenses’ and Rs.7,000/- towards ‘future medical expenses’, totalling to Rs.80,405/- towards actual expenditure I find the above amounts to be reasonable and just. 19. Therefore, I re-fix the compensation at Rs.1,80,450/-, instead of Rs.1,33,000/- awarded by the Tribunal, following the principles in **Master Mallikarjun** (supra). In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.47,450/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the M.A.C.A.No.1424/2011 -:9:- date of deposit and a cost of Rs.10,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/10.02.22 //True copy/ P.A.To Judge