MACA NO. 3214 OF 2014 (Albin George (Minor) v. Babu and The Manager, Oriental Insurance Co. Ltd., and Tomy Thomas)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 ``` ## **`MACA NO. 3214 OF 2014`** ``` AGAINST THE AWARD DATED 25.10.2013 INOP(MV)981/2010 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, PALA`** ## **`APPELLANT/PETITIONER:`** ``` ALBIN GEORGE (MINOR) S/O.GEORGE @ KUTTIYACHAN, KAVIL HOUSE, ALANADU KARA, BHARANANGANAM VILLAGE, REPRESENTED BY NEXT FRIEND AND FATHER GEORGE @ KUTTIYACHAN. ``` ``` BY ADV SRI.BABY THOMAS ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1BABU S/O.ANTONY, KALLEKULAM HOUSE, POONJAR THEKKEKKARA P.O., POONJAR, THEKKEKKARA VILLAGE, ERATTUPETTA, KOTTAYAM - 686 581. ``` ``` 2THE MANAGER THE ORIENTAL INSURANCE CO.LTD., KANJIAPPALLY BRANCH, CHEERANVELIL BUILDINGS, KANJIRAPPALLY, KOTTAYAM, PIN - 686 506. ``` ``` 3TOMY THOMAS AGED 44 YEARS, S/O THOMAS S/O.THOMAS, RANDANITHADATHIL HOUSE, ELACKADU KARA AND VILLAGE. ``` ``` BY ADVS. ``` ``` SC - SMT.A.SREEKALA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3214 OF 2014 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.981/2010 on the files of the Motor Accident Claims Tribunal, Pala. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.08.2010. 2. The accident occurred when the appellant was travelling as a pillion rider on a motorcycle bearing Registration No.KL 4 G 3233, ridden by his uncle, it was hit by a jeep bearing Registration No.KL 5 B 8123 came in the opposite direction. Consequent to the accident, the appellant sustained injuries, and it resulted in permanent disablement, which was certified as 9%. The appellant was a minor aged 14 years at the time of the accident and was studying in 10[th] standard. The jeep was being driven by the 1[st] respondent and was insured with the 2[nd] respondent Insurance Company. The 3[rd] respondent was the rider of the motorcycle on which the appellant was travelling. As compensation, an amount of ``` MACA NO. 3214 OF 2014 ``` ``` 3 ``` Rs.5,00,000/- was claimed. 3. The 2[nd] respondent Insurance Company filed a written statement admitting the coverage of policy in respect of the jeep. However, they disputed the liability on various grounds. According to them, the accident occurred due to the negligence on the part of the rider of the motorcycle. 4. The evidence in this case consists of oral evidence of PW1 and Exts.A1 to A11 from the side of the appellant. The 1[st] respondent was examined as CW1. The disability certificate issued by the Medical College Hospital, Kottayam, was marked as Ext.X1. After the trial, the Tribunal came to the finding that the accident occurred due to the negligence of R1 and R3 and both of them were held liable to pay the compensation and their liability was apportioned as 50:50. The quantum of compensation was fixed as Rs.1,23,100/- and the 2[nd] respondent Insurance Company was directed to deposit 50% of the said amount with 7.5% interest from the date of petition till realisation with proportionate cost. This ``` MACA NO. 3214 OF 2014 ``` ``` 4 ``` appeal is submitted by the appellant in such circumstances, challenging the finding on the question of negligence and also seeking enhancement of compensation. 5. Heard Sri.Baby Thomas, learned counsel appearing for the appellant and Smt.A. Sreekala, learned counsel appearing for the 2[nd] respondent Insurance Company. 6. The first contention put forward by the learned counsel for the appellant is with regard to the finding of the Tribunal on the question of negligence. It was pointed out that, as per the final report submitted by the Police, the driver of the jeep was implicated as an accused, who later pleaded guilty and was accordingly convicted. Therefore, it was contended that, by following the principles laid down by this court in **New India Insurance Company Ltd. v. Pazhaniyammal and others** [2011 (3) KLT 648], the Tribunal ought to have decided the question of negligence holding the 1[st] respondent responsible for the same. In the award, the Tribunal apportioned the liability between both drivers based on ``` MACA NO. 3214 OF 2014 ``` ``` 5 ``` the evidence of CW1, the 1[st] respondent. In the said deposition, he asserted that the accident occurred due to the negligence on the part of the rider of the motorcycle. As far as the contention put forward by the learned counsel for the appellant is concerned, the crucial aspect to be noticed is that, in **Pazhaniyammal’s** case, this Court held that, in the absence of any contra evidence, the conclusion arrived by the Police can be taken into consideration for the purpose of determining the question of negligence. However, in this case, there is contra evidence in the form of evidence of CW1, who was the 1[st] respondent himself, against whom the charge sheet has been submitted. Even though he admitted that he pleaded guilty, when he mounted the box, he contended that the accident occurred due to the negligence on the part of the rider of the scooter. 7. After considering the materials placed on record, I am of the view that the question of negligence cannot be decided by merely accepting the evidence of CW1 alone. The fact that the final report is against him and he also pleaded guilty is a relevant aspect ``` MACA NO. 3214 OF 2014 ``` ``` 6 ``` to be taken into consideration. However, in the facts and circumstances of the case, a complete exoneration of the 3[rd] respondent from liability is also not possible as there is some contra evidence available on record. Therefore, I am of the view that the finding of the Tribunal in this regard is to be modified by apportioning the contribution of both the drivers in causing the accident at the ratio 75:25 i.e., 75% on the driver of the jeep and 25% on the 3[rd] respondent and it is ordered accordingly. 8. The next aspect is relating to the quantum of compensation. The learned counsel for the appellant contended that injuries resulted in permanent disablement of the appellant, which was certified as 9%. The learned counsel pointed out that the monthly income taken by the Tribunal is on the extremely lower side, and therefore, it requires reconsideration. However, the crucial aspect to be noticed in this regard is that the Hon’ble Supreme Court has considered the manner in which the compensation has to be determined in the case of disability sustained by minor victims. ``` MACA NO. 3214 OF 2014 ``` ``` 7 ``` In **Master Mallikarjun v. Divisional Manager, National Insurance Co.Ltd. & Anr.** [(2014) 4 SCC 396 : 2013 KHC 4670]. As per the said decision, if the percentage of disability sustained by a minor is below 10%, a lump sum amount of Rs.1,00,000/- can be granted as compensation with actual expenses. Therefore, in the light of the aforesaid decision, the compensation can be fixed as Rs.1,00,000/- towards permanent disability, pain and suffering and other similar heads. However, while reckoning the actual expenses, the amount incurred by the appellant such as, transport to the hospital, extra nourishment, treatment expenses and bystander expenses are to be considered. The amounts already awarded by the Tribunal under these heads are Rs.3,000/-, Rs.1000/-, Rs.71,250/and Rs.2,600/- respectively. Besides the same, the learned counsel also pointed out that, consequent to the accident and the injuries, the appellant could not pursue studies for a period of one year and a whole academic year was lost. To substantiate the same Ext.A9 certificate was also relied on. Considering the said aspect, an amount of Rs.25,000/- is granted under the said head. Thus, the total ``` MACA NO. 3214 OF 2014 ``` ``` 8 ``` compensation is fixed as Rs.2,02,850/-. Thus, in the light of the aforesaid observations and findings, this appeal is allowed by modifying the award dated 25.10.2013 in O.P.(M.V.) No.981/2010 passed by the Motor Accident Claims Tribunal, Pala, by re-fixing the ratio of composite negligence as 75:25 between the 1[st] respondent and the 3[rd] respondent. Since the 2[nd] respondent is the insurer of the vehicle of the 1[st] respondent, they are liable to indemnify the 1[st] respondent. The quantum of compensation is fixed as Rs.2,02,850/- (Rupees two lakh two thousand and eight hundred and fifty only). Therefore, respondents 1, 2 and 3 are held jointly and severally responsible for compensation. Thus, the appellant is entitled to recover the said compensation from respondents 1 to 3, with interest at the rate as ordered by the tribunal and proportionate cost. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs