Asif @ Ashif v. Manhapra Sasidharan & The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938 MACA.No. 1496 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 475/2007 of M.A.C.T., MANJERI APPELLANT(S)/PETITIONER: ----------------------------- ASIF @ ASHIF REPRESENTED BY MOTHER/GUARDIAN, UMMU SALMA W/O.SHAJI, SENCHEERI, KOTTEPRAMBU HOUSE, PULLARA P.O VALLUVAMBROM, MALAPPURAM DISTRICT. ## BY ADVS.SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENT(S)/RESPONDENTS: -------------------------- 1. MANHAPRA SASIDHARAN S/O.VELAYUDHAN NAIR, BHAVANA VEEDU, NARUKARA P.O KOTTUPATTA, MANJERI, MALAPPURAM DISTRICT, PIN-676122 2. THE ORIENTAL INSURANCE COMPANY LIMITED, JASEELA COMPLEX, NILAMBUR ROAD, MANJERI PIN. 676 121. R2 BY ADV. SRI.P.JACOB MATHEW R2 BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1496 OF 2012 ==========================** Dated this the 8[th] day of December, 2016 ## **JUDGMENT** _Ravikumar, J._ The claimant-appellant who is a minor represented by his mother as his next friend preferred this appeal on being aggrieved by the quantum of compensation granted by the Motor Accidents Claims Tribunal, Manjeri in O.P.(MV).No.475 of 2007 as per award dated 15.12.2011. The said claim petition was filed under section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident occurred on 27.12.2006. On that day, he was walking alongside the road at Pullara (Kozhikode-Manjeri Road) when a motor cycle knocked him down. He sustained serious injuries and was immediately taken to the hospital. Admittedly, the **M.A.C.A.1496/2012** 2 injuries sustained by him resulted in permanent disability. As per the impugned award, a total compensation of `1,68,038/- was granted with interest at 9% per annum from the date of the petition till realisation. It is seeking enhancement of the said quantum of compensation that the captioned appeal has been preferred. 2.We have heard the learned counsel for the appellant and also Sri.Jacob Mathew P., the learned counsel appearing for the second respondent. In the absence of any evidence regarding the liability to indemnify the first respondent, the insured-owner of the offending vehicle as also the accident, the sole question surviving for consideration is regarding the entitlement of the appellant for enhanced compensation. In such circumstances, issuance of notice to the first respondent is dispensed with and we are proceeding to consider the appeal on merits at the admission stage itself. 3.In view of the enunciation of law by the Hon'ble Apex Court 3 **M.A.C.A.1496/2012** in **Master Mallikarjun v. Divisional Manager, the National Insurance Co.Ltd [2013 KHC 4670],** an elaborate process of adjudication is absolutely unnecessary for the disposal of this appeal. There is no dispute regarding the applicability of the decision of the Hon'ble Apex Court in **Master Mallikarjun** 's case to the facts of the case on hand. The learned counsel on both sides submitted that it is a case where the dictum laid down by the Apex Court in the said decision is applicable. When the indisputable fact is that the appellant incurred permanent disability in a motor vehicle accident and he was then a minor, the said decision is squarely applicable. Ext.X1 certificate issued by the medical board would reveal that the appellant sustained 40% disability. Going by the decision laid down in Master **Master Mallikarjun'** s case, in respect of a minor who incurred 40% disability in a motor vehicle accident, he is entitled to get a compensation of `4,00,000/- for the disability. In addition to that, the claimant is entitled to get the actual pecuniary loss sustained. On **M.A.C.A.1496/2012** 4 careful scrutiny of the impugned award it is evident that the Tribunal calculated the compensation after quantifying the compensation under the head loss of earning power and under such other heads. In the light of the fact that the dictum in **Master Mallikarjun** 's case (supra) is squarely applicable to the facts of this case, the assessment made by the Tribunal need not be looked into except in the case of pecuniary loss and we are inclined to re-assess the compensation in the light of the said decision. Taking note of the fact that the appellant sustained 40% disability due to motor vehicle accident and then he was a minor, he is entitled to get `4,00,000/-. In addition to the same, he is only entitled to get reimbursement of actual expenses; viz., the compensation granted by the Tribunal under the heads medical expenses viz.,1538/-, bystanders expenses `1,000/-, damage to clothing `250/- and transportation expenses `1,250/-. Thus, the amount payable, on re-assessment, is `4,04,038/-. The Tribunal has already awarded an amount of `1,68,038/- as compensation. In such circumstances, the appellant would be entitled to get an additional **M.A.C.A.1496/2012** 5 compensation of `2,36,000/- by applying the dictum laid down in **Master Mallikarjun** 's case (supra). The said amount is awarded. The additional compensation will carry 8% interest from the date of the petition till realisation. The second respondent is directed to deposit the said amount along with interest thereon within two months from the date of receipt of a copy of this judgment. The Tribunal shall realise the court fee payable on the compensation awarded over and above the claim, from the appellant. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** //true copy// P.A.to Judge **M.A.C.A.1496/2012** 6 **C.T. RAVIKUMAR, J.** **M.A.C.A.1496/2012** 7 **JUDGMENT September, 2010**