Kevin (Minor) v. Joseph and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943 ``` ``` MACA NO. 1793 OF 2011 ``` ``` AGAINST THE AWARD DATED 17.04.2009 IN OP(MV)NOS.955/2004 173/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA ``` ## `APPELLANT/PETITIONER:` ``` KEVIN (MINOR), S/O. JOJO, REPRESENTED BY HIS MOTHER AND NEXT FRIEND BINDHU, W/O. JOJO, PUNNATHAZHATHU HOUSE, ELAMDESOM KARA, ALAKODE VILLAGE, THODUPUZHA TALUK. ``` ``` BY ADV THOMAS J.ANAKKALLUNKAL ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1JOSEPH, S/O. SAMUEL, NEDUYUZHATHIL HOUSE, SANYASIODA KARA, PAMADUMPARA VILLAGE, IDUKKI DISTRICT 685556 2KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM 695 001. ``` ``` 3SUNIL, S/O. JOSEPH, AMBILIVILASOM HOUSE, PIZHAKU KARA, RAMAPURAM VILLAGE, KOTTAYAM DISTRICT. 686591 ``` ``` 4HARIDAS, S/O. K.K. BHASKARAN, MALAYIL HOUSE, CHANGANASSERY, KOTTAYAM DISTRICT-686101 ``` - `5 NATIONAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS BRANCH MANAGER, CHANGANASSERY, KOTTAYAM DISTRICT-686101.` M.A.C.A.No.1793/2011 -:2:- ``` BY ADVS.SRI.ALEX ANTONY SEBASTIAN P.A. SMT.DEEPA GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1793/2011 -:3:- Dated this the 10[th] day of March,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.173/2005 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, through his mother and next friend, claiming compensation on account of the injuries sustained to him in an accident on 04.08.2004. It was his case that, while he was one year old and was travelling in an autorickshaw bearing registration No.KL-5B-7353 along the Thodupuzha-Pala road, a KSRTC bus bearing registration No.KL-15/4696(bus), driven by the first respondent in a negligent manner, hit the autorickshaw. The appellant sustained multiple injuries M.A.C.A.No.1793/2011 -:4:- and was treated as an inpatient at the Matha Hospital, Kottayam, AIMS Hospital, Ernakulam and the Medical College Hospital, Kolencherry, from the date of accident till 25.09.2004. The second respondent was the owner of the bus and the respondents 3 to 5 were the driver, owner and insurer of the autorickshaw, respectively. Hence, the appellant claimed a compensation of Rs.3,00,000/- from the respondents. 3. The appellant’s mother, who also sustained injuries in the same accident had filed O.P. (MV)No.955/2004 before the same Tribunal, seeking compensation from the respondents. 4. The respondent Nos.2 and 5 contested the proceedings and had filed separate written statements in the two claim petitions. They denied the allegations in the claim petitions. They blamed the drivers of the opposite vehicles of being negligent in causing the accident. Hence, they prayed that the claim petitions M.A.C.A.No.1793/2011 -:5:- be dismissed. 5. The Tribunal consolidated and jointly tried the two claim petitions. 6. The appellant’s mother was examined as PW1 and Exts.A1 to A15 were marked in evidence. The fifth respondent had produced the insurance policy, which was marked as Ext.B1. 7. The Tribunal, after appreciating the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.83,510/- with interest at the rate of 8% from the date of petition till the date of deposit. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. Thomas J. Anakkallunkal, the M.A.C.A.No.1793/2011 -:6:- learned counsel for the appellant/petitioner, Sri. Alex Antony Sebastian P.A., the learned counsel appearing for the second respondent-owner of the bus and Smt. Deepa George, the learned counsel appearing for the fifth respondent-insurer. 10. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 11. Ext.A4 Final Report filed by the Ramapuram police in Crime No.122/2004 proves that the accident happened due to the negligence of the first respondent. Indisputably, the second respondent was the owner of the bus. The respondents have not let in evidence to discredit Ext.A4 Final Report. Therefore, the second respondent is vicariously liable to pay the compensation arising out of the accident. M.A.C.A.No.1793/2011 -:7:- ## **Disability:** 12. The Tribunal had referred the appellant to a Medical Board, attached to the Taluk Headquarters Hospital, Thodupuzha. The three member Medical Board by Ext.A15 disability certificate has assessed the appellant’s ‘permanent disability’ at 26%. However, the Tribunal, without adverting to Ext.A15, has fixed the ‘permanent disability’ of the appellant at 8%. The course adopted by the Tribunal is erroneous and wrong, especially since the Tribunal has not given any reason to discard the disability certificate issued by the Medical Board. 13. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, if the Tribunal is dissatisfied with the disability assessed by a Doctor, then the Tribunal has to refer the injured/claimant to a duly constituted Medical Board. M.A.C.A.No.1793/2011 -:8:- 14. In the case at hand, the Tribunal has by its own order, referred the appellant to a Medical Board and the Medical Board has assessed the permanent disability of the appellant at 26%. Therefore, the Tribunal ought to have accepted the assessment made in Ext.A15 and fixed the ‘functional disability’ of the appellant at 26%. Hence, I accept Ext.A15 and fix the ‘functional disability’ of the appellant at 26%. 15. The Hon’ble Supreme Court in **Master Mallikarjun v. Divisional Manager, the National Insurance Company Ltd. & Anr.** [(2014) 14 SCC 396], has categorically laid down the law with respect to payment of compensation to minor children, who suffered permanent disability in the range of 10% to 30% to the whole body. The Hon’ble Supreme Court has, inter alia, held that in such cases, the injured child is entitled to a consolidated amount of Rs.3,00,000/-, in addition to the actual treatment M.A.C.A.No.1793/2011 -:9:- expenditure and attendant charges. 16. In the instant case, as the appellant was only aged one year at the time of the accident and Ext.A15 certificate establishes that he has suffered a ‘functional disability’ of 26%, I am of the firm view that the ratio in **Master Mallikarjun** (supra), has to be followed in the present case. Consequentially, I award the appellant a consolidated amount of Rs.3,00,000/-. I also confirm the amounts awarded by the Tribunal i.e., an amount of Rs.3,000/- towards ‘bystander expenses’ and Rs.33,510/- towards ‘medical expenses’ viz., an amount of Rs.36,510/-. Therefore, I award the appellant a total amount of Rs.3,36,510/-. After deducting the amount of Rs.83,510/- awarded by the Tribunal. I award the appellant a further amount of Rs.2,53,000/-. In the result, the appeal is allowed, by enhancing the compensation by a further amount of M.A.C.A.No.1793/2011 -:10:- **Rs.2,53,000/-** with interest on the enhanced compensation at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 768 days (i.e., the period of delay in preferring this appeal and as ordered by this Court on 22.11.2011 in C.M.Appln.No.2290/2011), and a cost of Rs.10,000/-. The second 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. As the appellant has already attained majority, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/10.03.22 //True copy/ P.A.To Judge