MACA NO. 2478 OF 2009

MACA NO. 2478 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943** ## **MACA NO. 2478 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 751/2001 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL TIRUR, MALAPPURAM** ## **APPELLANT/PETITIONER:** MINOR SAIMEGHNA, AGED 15 YEARS, REP.BY GUARDIAN, K.SUJATHAMMA,, LINGAREDDYVARA STREET, VAKADU P.O.,, NELLORE DISTRICT, ANDHRA PRADESH. BY ADV SRI.V.BINOY RAM ## **RESPONDENT/S:** - 1 S.D.MOHAMMED SHAKI, S/O.MOHAMMED GOUSE, 21/44, JANDA STREET,, NELLORE P.O., ANDHRA PRADESH. - 2 HARI BABU SO.VENGIDAYYA, POOVADI HOUSE, BAIJI, KAVALA,, NELLORE P.O., ANDHRA PRADESH. - 3 UNITED INDIA INSURANCE CO.LTD., 16/2968, ANURAJ COMPLEX, JAWAHARLAL ROAD,, NELLORE P.O., ANDHRA PRADESH. - 4 M.K.ABDUL LATHEEF S/O.HASSINAR HAJI, UMMAR SAHIB, SAHIB MANZIL, KALLIGUNDI P.O.,, SAMPAGEGATE, SULLIA, KARNATAKA. - 5 RAJESH S/O.KUNJAPPU KULLACHAL HOUSE, MALLOM AMSOM,, P.O.KASARGODE. 6 THE NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, 2ND FLOOR, COMPLEX,, DENTOORWELL CIRCLE, KANKANADY, MANGLORE,, KARNATAKA. BY ADVS. SRI.RAJAN P.KALIYATH SMT.DEEPA GEORGE MACA NO. 2478 OF 2009 2 SRI.M.A.GEORGE SMT.M.MEENA JOHN SRI.VIJU THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2478 OF 2009 3 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.751/2001 on the file of the Motor Accidents Claim Tribunal, Tirur. 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 her next friend and mother, as she was only 6 years at the time of filing the claim petition, claiming compensaton on account of the injuries that she sustained in an accident on 23.11.2000. 3. The appellant had averred in the claim petition that, on 23.11.2000, while the injured was traveling in a passenger tempo van bearing registration No.AP-26-T/9225 (van) through Kuttippuram – Edappal road, when the van reached near Mallur Shiva Temple, a lorry bearing registration No.KA-21A/9990, driven by the 5[th] respondent came from the opposite direction and there was a collision between the lorry and the van. The accident occurred due to the negligence of the 2[nd] respondent, who drew the van in a MACA NO. 2478 OF 2009 4 negligent manner and hit on the lorry. As a result of the said accident, that the appellant sustained serious injuries and was treated as an inpatient. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. Hence, the appellant claimed a total compensation of Rs.2,31,000/-. 4. The other injured and legal heirs of the deceased, who lost their lives in the same accident, filed OP(MV) Nos.751, 752, 753 and 755 of 2001 before the same Tribunal on the very same set of pleadings. 5. The respondents 1, 2, 4 and 5 did not contest the proceedings and were set ex-parte. The 3[rd] respondent filed written statements in all the cases admitting that the van had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence on the part of the driver of the lorry. 6. The 6[th] respondent/insurer of the lorry also filed separate written statements in all the claim petitions contending that the accident occurred due to the negligence on the part of the 2[nd] respondent/driver of the van. MACA NO. 2478 OF 2009 5 7. The Tribunal consolidated and jointly tried all the claim petitions. The petitioners in all the cases produced and marked Exts.A1 to A35 in evidence. The respondents did not let in any evidence. 8. The Tribunal by its common award allowed the captioned claim petition permitting the appellant to realise an amount of Rs.1,05,900/- with interet at the rate of 6% per annum from the date of petition till the date of realistion with cost of Rs.2,000/-. The 3[rd] respondent was directed to pay compensation amount. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal the appellant/petitioner is in appeal. 10. Heard; Sri.Binoy Ram V., learned counsel appearing for the appellants/petitioners and Smt.Deepa George, learned counsel appearing for the 3[rd] respondent/insurer of the van and Sri.Viju Thomas, learned counsel appearing for the 6[th] respondent/insurer of the lorry. ## **Negligence and Liability** 11. Ext.A1 FIR, Ext.A31 scene mahazer and Ext.A32 MACA NO. 2478 OF 2009 6 case diary of the Kuttippuram Police substantiate that the accident occurred due to the negligence on the part of the 2[nd] respondent, who drew the van in a negligent manner. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. Thus, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident by the use of the van. ## **Compensation** 12. The Honourable Supreme Court in **Master Mallikarjun vs. Divisional Manager, National Insurance Co. Ltd. and another** [2013 (3) KLJ 805] has succintly laid down the law that in the case of disability caused to minor children in accidents, for a permanent disability upto 10% to the whole body, an amount of Rs.1,00,000/- has to be paid as consolidated compensation, excluding the actual expenditure for treatment and attendant charges. 13. Following the ratio in **Master Mallikarjun** (supra) and taking note of the fact that the appellant had sustained a permanent disability of 10% as evidenced by Ext.A4 MACA NO. 2478 OF 2009 **==> picture [7 x 9] intentionally omitted <==** certificate, I hold that the appellant is entitled for a consolidated compensation of Rs.1,00,000/- excluding the treatment expenses and transportation charges. 14. In the present case, the appellant had incured medical expenses to the tune of Rs.58,400/- which was directed to be reimbursed. Similalry, the Tribunal awarded an amount of Rs.2,000/- towards transportation expenses, which I hold that the appellant is entitled. Hence, I hold that the appellant is entitled to a toal compensation of Rs.1,60,400/- as consolidated compensation and actual expenses, instead of Rs.1,05,900/- awarded by the Tribunal. 15. On an overall re-appreciation of the pleadings and materials on record, and the law laid down in the above referred decisions, I am of the definite opinion that the appellant is entitled for enhancement of compensation as recalculated above. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.54,500/- with interest at the rate of 6% from the date of petition till the date of realisation and a cost of Rs.3,000/-. 8 MACA NO. 2478 OF 2009 The 3[rd] respondent is ordered to deposit the enhanced compensation awarded in the appeal with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. All the pending interlocutory applications will stand closed. Sd/- **C.S.DIAS JUDGE** rkc