Libin K.S. v. Sebastian P.M. & United India Insurance Company Ltd.

**TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940** ## **AGAINST THE AWARD DATED 29-04-2014 IN OPMV 1548/2006 of ADDL.MACT,THALASSERY** **APPELLANT/PETITIONER:** **----------------------** **LIBIN K.S., S/O.SHAJI, KALLIKATTIL HOUSE, NEEDUNOKKI, KOTTIYOOR P.O., KOTTIYOOR AMSOM, KANNUR DISTRICT** **BY ADVS.SRI.C.P.PEETHAMBARAN SMT.MINI.V.A.** **RESPONDENTS/RESPONDENTS: -----------------------1. SEBASTIAN P.M., S/O.MATHEW, PUTHUMATTATHIL HOUSE (PULAMANATHIL HOUSE), KOTTIYOOR AMSOM, CHUNGAKUNNU DESOM, KOTTIYOOR P.O, KANNUR DISTRICT - 670 651 (OWNER CUM DRIVER OF VEHICLE KL-13/F.5221 JEEP) 2. UNITED INDIA INSURANCE COMPANY LTD., KANNUR BRANCH OFFICE, P.B.NO.52, FORT ROAD, KANNUR 670001, PERAMBRA, KOZHIKODE DISTRICT R2 BY ADVS. SRI.A.A.MOHAMMED NAZIR SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K.Harilal, J.** ==================================== M.A.C.A.No.2397/2014 ==================================== Dated this the 10[th] day of April, 2018. ## **JUDGMENT** The appellant is the petitioner in O.P. (MV)No.1548/2006 on the file of the Motor Accidents Claims Tribunal, Thalassery. The aforesaid petition was filed under section 166 of the Motor Vehicles Act, claiming compensation for the bodily injuries suffered by him in a road traffic accident. According to the petitioner, while he was returning from school in a friend's bicycle, the offending jeep, driven by the first respondent, hit him, causing grievous injuries to him. According to him, the accident was caused due to the rash and negligent driving of the offending vehicle, by the first respondent. Hence, the respondents 1 and 2, who are the owner-cum-driver and insurer, are Maca2397/2014 -:2:- responsible to compensate him. He claimed `2,00,000/-, as compensation, for the injuries suffered by him. 2. The insurance company opposed the said claim, disputing the quantum of compensation, claimed under various heads and the cause of accident, but admitted the coverage of the policy, contending that there was violation of the policy conditions. The first respondent was not holding the badge, for driving the jeep. Therefore, the second respondent insurance company is not liable, to indemnify the first respondent. 3. After considering the evidence on record, the Tribunal passed the impugned award, granting 1,23,700/- to the appellant, as compensation. The inadequacy and correctness of the quantum of compensation, determined under various heads of Maca2397/2014 ## -:3:- claim and the reservation clause granted in favour of the insurance company, to realize the compensation from the first respondent, after effecting payment to the appellant, are challenged in this appeal. 4. Heard the learned counsel for the appellant and the learned standing counsel for the insurance company. 5. The sum and substance of the argument, advanced by the learned counsel for the appellant, is that the monthly income fixed by the Tribunal is very low and the quantum of compensation determined under the heads, pain and sufferings and permanent disability, is inadequate and requires enhancement in this appeal. It is also contended that the Tribunal went wrong by not granting any amount for loss of amenities. Maca2397/2014 -:4:- 6. In view of the arguments at the bar, the point to be considered is, whether the quantum of compensation, determined by the Tribunal, under the aforesaid heads of claim, is just and fair. It is not disputed that the appellant was a student, aged 14 years only at the time of accident. So, it cannot be held that he was earning at the time of accident. But, the Tribunal has taken `3,000/-, as monthly notional income. Even in the absence of actual earnings, the income can be taken notionally, to determine the compensation for permanent disability. The Supreme Court in _**Mallikarjun v. Divisional Manager, National Insurance Co. Ltd.**_ **[2013 (3) KLJ 815]** laid down a guideline, for the accurate assessment of compensation in the case of children suffering disability on account of a motor vehicle accident. In the aforesaid decision, the Maca2397/2014 -:5:- ## Supreme Court held as follows: _“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, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs 3 lakhs; up to 60%, Rs 4 lakhs; up to 90%, Rs 5 lakhs and above 90%, it should be Rs 6 lakhs. For permanent disability up to 10%, it should be Rs 1 lakh, unless there are exceptional circumstances to take a different yardstick.”_ 7. In the instant case, the appellant has 10% permanent disability, as per Ext.X1 disability certificate. When applying the proposition laid down in the aforesaid decision, the appellant is Maca2397/2014 -:6:- entitled to get a consolidated amount of 1,00,000/under the heads, permanent disability, pain and sufferings and loss of amenities. Therefore, the appellant is given 1,00,000/- under the aforesaid heads of claim. The learned counsel for the appellant further contended that the amount granted as 'bystander expenses' is very low, in view of the long duration of period, under which the appellant was undergoing treatment, as an inpatient. The learned counsel further pointed out that the appellant had undergone treatment as an inpatient for 52 days. But, the Tribunal has granted expenses for 'bystander' taking 27 days only. The period under which the appellant had undergone treatment as an inpatient was not disputed by the respondent. Therefore, the appellant is entitled to get compensation under the head 'bystander expenses' for Maca2397/2014 -:7:- 52 days. Thus, the appellant is given `10,400/under this head. 8. The learned counsel further pointed out that at the time of accident, he was studying in 9[th] standard and he had lost one academic year. But, no amount had been granted for the said loss suffered by him in his academic career. I find some force in the argument advanced by the learned counsel for the appellant. In Ext.A6 certificate issued by the Headmistress, L.J.M.H.S.S. Kottiyoor, it is stated that the appellant discontinued his studies from 22.06.2006 and readmitted on 08.06.2007 in 10[th] standard, due to the vehicle accident and produced medical certificate for the same. Ext.A7 is another certificate issued by the Principal, L.J.M. Higher Secondary School, Kottiyoor, stating that the appellant was on leave up to 31.03.2006 due to the Maca2397/2014 -:8:- accident on 22.02.2006. Since he was continuously absent for 15 working days, he was removed from the rolls on 01.08.2006. This Court cannot ignore the loss of one year and additional expenses met by him to compensate his lost classes. In the above view, the appellant is given `25,000/-, as compensation for the loss of one academic year. Thus, the total compensation payable to the appellant is worked out as given below: Transport to hospital : `5,000/Extra nourishment : `5,000/Medical expenses `24,300/Bystander expenses : `10,400/Consolidated amount for : `1,00,000/ - 'pain and sufferings', permanent disability and loss of amenities Compensation for loss of : `25,000/academic year Total : `1,69,700 9. Thus, the appellant is given `1,69,700/- as Maca2397/2014 -:9:- compensation. It is needless to say the aforesaid amount would carry interest at the rate of 8% per annum from the date of petition. All other findings and directions of the Tribunal would stand undisturbed and operative. The appellant is allowed to withdraw the entire compensation on attainment of majority. 10. As rightly pointed out by the learned counsel for the appellant, merely on the reason that the 1[st] respondent was not holding a badge, the Insurance Company cannot escape from the liability to pay compensation to the claimant, in view of the decision of the Supreme Court in _**Mukund Dewangan v. Oriental Insurance Company Limited**_ [2017(3) KLT 1000]. Relying on the aforesaid decision, a Full Bench of this Court in _**Shaji v. Pradeesh**_ [2018 (2) KLT 136 (F.B.)] also held that no separate Maca2397/2014 -:10:- endorsement on the licence is required to drive a transport vehicle of light motor vehicle class. The aforesaid decision was held on a reference. The question referred was whether the absence of a badge by the driver of a transport vehicle is sufficient to exonerate the Insurance Company from the liability to pay compensation to the claimant or whether an Insurance Company is entitled to recover the compensation paid by them to the claimant from the owner. The Full Bench relying on _**Mukund Dewangan**_ 's case (Supra) held that the question referred to the Full Bench is answered by the aforesaid decision. Thus, the law stands settled that absence of badge by a driver of a transport vehicle is not sufficient to exonerate the Insurance Company from the liability to pay compensation to the claimant. In the light of the decision referred Maca2397/2014 -:11:- above, the reservation clause to realise the compensation from the 1[st] respondent after paying the same to the appellant would stand set aside. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K.Harilal, Judge** sl/DST. //True copy// P.S. To Judge