MANOJ (minor) represented by guardian and mother Omana v. P.A. Ameeer; Mohanan P.K.; National Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 ``` ## **`MACA NO. 2688 OF 2009`** ``` AGAINST THE AWARD DATED 18.12.2006 IN O.P(M.V) NO.3407/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. ``` ## **`APPELLANT/PETITIONER:`** ``` MANOJ, (MENTALLY RETARDED), REPRESENTED BY GUARDIAN AND MOTHER OMANA, W/O.LATE SEBASTIAN,PALLIPARAMBAN HOUSE, KANNANKULANGARA,P.O.,KOORKANCHERY,THRISSUR. ``` ``` BY ADV SRI.P.V.CHANDRA MOHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1P.A.AMEER, S/O ABDU, PALAKKAL HOUSE, INCHAMUDI,THRISSUR DISTRICT. 2MOHANAN.P.K, S/O.KRISHNANKUTTY, PANIKKASSERY HOUSE, ANCHERY, OLLUR, THRISSUR. 3NATIONAL INSURANCE CO.LTD BRANCH OFFICE, AMBIKA ARCADE, P.B.NO.89,M.G.ROAD, THRISSUR. ``` ``` BY ADVS. M.A.SHIHAB SRI.LAL GEORGE SRI SEBASTIAN VARGHESE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 11.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2688 OF 2009 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 11[th] day of April, 2023.** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Thrissur (for short, ‘the Tribunal’) on 18.12.2006 in O.P(M.V)No.3407/2002. 2. The appellant is the mother and next friend of the minor boy aged 15 years, who had sustained injuries in a motor accident occurred at about 01 pm on 26.04.2002 at Chiyyaram. The minor boy was walking along the eastern side of Ikyanagar at Chiyyaram and an Autorickshaw bearing Registration No.KL-8/8832 driven by its driver in a rash and negligent manner knocked him down and thereby, he sustained serious injuries. 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 4. It is alleged that the motor accident in question was occurred due to the rash and negligent driving of the Autorickshaw by its driver, who was arrayed as the 2[nd] respondent in the Original Petition. A total sum of ₹1,02,000/- was also claimed as ``` MACA NO. 2688 OF 2009 ``` ``` 3 ``` compensation in the Original Petition. The owner, the driver and the insurer of the Autorickshaw bearing Registration No.KL-8/8832 were arrayed as respondents 1 to 3 in the Original Petition. 5. All respondents were served with notice. 1[st] respondent entered appearance but failed to file any written statement. Though the driver was arrayed as the 2[nd] respondent, relief was not sought against him. 6. The 3[rd] respondent had filed written statement admitting insurance coverage for the Autorickshaw bearing Registration No.KL-8/8832 as on date of accident. It was contended that the motor accident in question was occurred not due to the negligence of the driver of the Autorickshaw, who was arrayed as the 2[nd] respondent but due to the negligence of the minor boy, who was walking through the road in a careless manner. The age, nature of injury sustained and treatment undergone by him were denied. The compensation claimed is also disputed for its exorbitant nature. 7. Before the Tribunal, evidence was adduced by the petitioner as Exts.A1 to A9 and by the respondent as Ext.B1. 8. On the basis of the evidence on record, the Tribunal found that the motor accident in question was occurred due to the ``` MACA NO. 2688 OF 2009 ``` ``` 4 ``` rash and negligent driving of the Autorickshaw bearing Registration No.KL-8/8832, by its driver, who was arrayed as the 2[nd] respondent in the Original Petition. The Tribunal has also found that the minor boy had sustained serious injuries in the motor accident and therefore, is entitled to get compensation from the respondents. ₹32,800/- was arrived at as the compensation payable. 9. On the basis of its finding that the 2[nd] respondent was driving the Autorickshaw without holding a valid and effective driving licence at the relevant time, the Tribunal has exonerated the 3[rd] respondent insurer from liability to indemnify the insured. The Tribunal directed the 1[st] respondent to deposit the compensation arrived at with interest at the rate of 7% per annum from 17.12.2002, the date of filing of the Original Petition till the date of actual payment alongwith proportionate cost, within 30 days from the date of the award. 10. Aggrieved by the quantum of compensation stands awarded by the Tribunal, the mother as the next friend of the injured minor boy has approached this Court seeking for enhancement. ``` MACA NO. 2688 OF 2009 ``` ``` 5 ``` 11. It is contended by Sri.P.V Chandramohan, the learned counsel for the petitioner that the Tribunal failed to follow **Master Mallikarjun v. Divisional Manager, The National Insurance Co. Ltd. and another** [2013 KHC 4670], wherein ₹1,00,000/- in lumpsum was directed by the Apex Court to be paid as the compensation payable to a minor, who suffered disability up to 10%, on account of the injuries sustained in a motor accident. 12. According to the learned counsel, petitioner had suffered permanent disability and that has been certified by the Assistant Professor and Orthopaedic Surgeon of Medical College Hospital, Trissur as 12%. Since the Doctor was not examined to prove the certificate assessing disability, marked in evidence as Ext.A9, the Tribunal was reluctant to take 12% as the permanent disability and had taken only 5% for the purpose of computation of compensation. According to the learned counsel, when the disability assessed by the Tribunal itself is considered, the minor boy is entitled to get ₹3,00,000/- as compensation under the non-pecuniary heads. The learned counsel has also pointed out that apart from ₹3,00,000/-, the minor boy is also entitled to get reasonable sums as ``` MACA NO. 2688 OF 2009 ``` ``` 6 ``` compensation under the pecuniary heads. The learned counsel canvassed for a modification of the compensation stands awarded by the Tribunal in accordance with the fixation in **Master Mallikarjun** supra. 13. It is further contended by the learned counsel for the petitioner that though the Tribunal had found that the 2[nd] respondent, the driver of the Autorickshaw was driving the same without holding a valid and effective driving licence, rather than permitting the 3[rd] respondent to recover the amount from the owner/insured, the Tribunal has exonerated the 3[rd] respondent insurer from liability to indemnify the insured. According to the learned counsel, fixation of liability accordingly by the Tribunal is wrong and interference of this Court is required to correct it. 14. The learned counsel for the 3[rd] respondent conceded that the minor boy is entitled to get compensation in tune with the fixation of compensation by the Apex Court in **Master Mallikarjun** supra. The learned counsel has also submitted that the position of law has been changed and when a violation of policy conditions like driving of the offending vehicle without authorisation is established before the Tribunal, the insurer shall be ``` MACA NO. 2688 OF 2009 ``` ``` 7 ``` permitted to recover the compensation from the insured after paying it in favour of the petitioner. 15. This Court finds that in **Master Mallikarjun** supra, the Apex Court has laid the foundation for grant of compensation for permanent disability in the case of minor children. The Apex Court has directed that ₹1,00,000/- shall be paid in lumpsum when the injured had suffered a disability less than 10% and ₹3,00,000/in lumpsum when the disability suffered is above 10%. 16. In the case on hand, Ext.A9 is a certificate assessing disability of the petitioner. The disability has been assessed by an individual Doctor, but he was not examined before the Tribunal. In that context, the Tribunal had taken 5% as the permanent disability and compensation had been assessed on its basis. 17. When the direction of the Apex Court in **Master Mallikarjun** supra is followed, for children having 5% disability, ₹1,00,000/- is required to be awarded. Therefore, this Court is awards ₹1,00,000/- in lumpsum as compensation which is inclusive of compensation for pain and suffering, loss of amenities and enjoyments in life and permanent disability. ``` MACA NO. 2688 OF 2009 ``` ``` 8 ``` 18. Apart from that the injured is also entitled to get compensation under pecuniary heads. The Tribunal has awarded only ₹500/- each towards transportation expenses and damages to clothing, ₹700/- towards bystander expenses and ₹1,000/- towards extra nourishment. The Accident Register cum Wound certificate and the discharge card marked in evidence respectively as Ext.A2 and A6 report that following the motor accident, the minor boy was treated at Medical College Hospital, Thrissur for 8 days from 26.04.2002. The fracture sustained by him was reduced and POP slab was applied followed by POP Cast till 05.07.2002. Therefore, 3 months need to be considered as the period of rest and compensation towards extra nourishment and bystander expenses calculated on its basis. 19. The minor boy was a resident of Koorkancherry, Thrissur and had undergone treatment at Medical College Hospital, Thrissur. He was treated inpatient for eight days and had follow ups thereafter. Therefore, the compensation stands awarded towards transportation expenses is also required modification. Accordingly this Court awards ₹1,500/- more towards transportation expenses. ``` MACA NO. 2688 OF 2009 ``` ``` 9 ``` ₹2,300/- more towards bystander expenses and ₹2,000/- more towards extra nourishment. ₹500/- more is also awarded towards damages to clothing. Therefore the petitioner will get ₹1,06,300/(Rupees One lakh six thousand and three hundred only) (₹1,500/- + ₹2,300/- +₹500/- + ₹2,000/- + ₹1,00,000/-) as additional compensation, which will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 936 days being the period of delay occurred in filing the appeal on hand. It was proved before the Tribunal that the 2[nd] respondent had driven the offending vehicle without authorisation and the Tribunal had exonerated the 3[rd] respondent from its liability to indemnify the insured. The fixation of liability by the Tribunal being wrong is set aside. The 3[rd] respondent shall pay the compensation with interest stands awarded originally (if not already paid) and that arrived at now, in favour of the petitioner within a period of two months from the date of receipt of a certified copy of this judgment, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019 and shall get recovery of the same from 1[st] and 2[nd] respondents. ``` MACA NO. 2688 OF 2009 ``` ``` 10 ``` M.A.C.A. stands allowed accordingly. ``` Sd/- ``` **MARY JOSEPH** **JUDGE** JJ Continued………. ``` MACA NO. 2688 OF 2009 ``` ``` 11 ``` The 7[th] sentence in Paragraph 19 of the judgment dated 11.04.2023 in MACA No.2688/2009 is substituted as “Therefore, the petitioner will get `77,050/- [(Rupees Seventy Seven Thousand and Fifty only) (`1,500/- + `2,300/- + `500/- + `2,000/- + `70,750/-)] as additional compensation, which will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 936 days, being the period of delay occurred in filing the appeal on hand.”, as per order dated 04.07.2023 in RP No.617/2023 in MACA No.2688/2009. Sd/- Deputy Registrar