Mathew C.L. (Minor) vs Stephen Stanley Tharayil, National Insurance Company Limited and Jacob Tharayil

1 MACA No.1807 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA,** ## **1943** ## **MACA NO. 1807 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1192/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** MATHEW.C.L(MINOR) S/O. LIJI PHIBY, CHUNDANGAL HOUSE, KOTTAMAM,, NEELESHWARAM P.O., REPRESENTED BY HIS FATHER LIJI PHIBY, AS GUARDIAN AND NEXT FRIEND. BY ADVS. SRI.ANIL S.RAJ SRI.G.ARUN GOPAN SMT.K.N.RAJANI ## **RESPONDENT/S:** 1 STEPHEN STANLEY THARAYIL HOUSE, KADAPPARA, MALAYATTOOR P.O.,, PIN-683 587. 2 NATIONAL INSURANCE COMPANY LIMITED P.B.NO.89, URUMBATH BUILDINGS, PUMB JUNCTION,, ALUVA-683 101. 3 JACOB THARAYIL HOUSE, KADAPPARA, MALAYATTOOR P.O.,, PIN-683 587. BY ADV SRI.LAL GEORGE **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1807 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.1807 of 2011** ## **====================== Dated this the 25[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1192/2005 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition through his next friend and father, under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 12.3.2005. It was the his case that, while he was proceeding through the Kottamam road, a TVS scooter bearing registration No.KL-7/AJ 6206 (scooter), driven by the third respondent in a rash and negligent manner, hit the appellant. The appellant sustained serious injuries including 3 MACA No.1807 of 2011 comminuted fracture with underlining right fd contusion and brain contusion. He was treated as an inpatient at the Medical Trust Hospital, Ernakulam from 12.3.2005 to 24.3.2005. The appellant sustained a permanent disability. The scooter was owned by the first respondent and insured with the second respondent. The appellant claimed a compensation of Rs.2,06,000/- from the respondents. 3. The respondents 1 and 3 did not contest the proceeding and were set ex parte. 4. The second respondent had filed a written statement admitting that the scooter had a valid insurance coverage. However, the second respondent contended that the accident occurred due to the negligence of the appellant. The second respondent also stated that the compensation claimed was excessive. 4 MACA No.1807 of 2011 5. The appellant's next friend was examined as PW1 and two other Doctors were examined as PWs 2 and 3 and Exts A1 to A10 and X1 were marked through them in evidence. The second respondent had produced the insurance policy certificate, which was marked as Ext B1. 6. The Tribunal, after analysing the pleadings and materials on record, particularly taking note of the fact that the appellant had suffered a functional disability of 25% as per Ext A8, allowed the claim petition, by permitting the appellant to realise from the second respondent an amount of Rs.1,45,914/with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 8. Heard: Smt.Rajani K.N, the learned Counsel appearing for the appellant/petitioner and Sri.Lal 5 MACA No.1807 of 2011 George, the learned counsel appearing for the second respondent – insurer. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. Ext A4 charge-sheet filed by the Kalady Police in crime No.139/2005, substantiates that the accident occurred due to the negligence of the third respondent. Admittedly, the first respondent was the owner and the second respondent was the insurer of the scooter. The respondents have not let in any contra evidence to discredit the charge sheet. The second respondent has also not proved that the first respondent had violated the terms of the insurance policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. 6 MACA No.1807 of 2011 11. It is proved that the appellant was only 7 years at the time of the accident, as he was born on 29.3.1998. Ext A8 proves that the appellant has sustained a functional disability of 25%. 12. The Hon'ble Supreme Court in **Master Mallikarjun vs. Divisional Manager, National Insurance Co Ltd and another [2013 (3) KLJ 815]** has categorically held that in the case of disability of a minor child who has sustained a disability between 10 and 30 percent to the whole body, an amount of Rs.3,00,000/- has to be paid as consolidated compensation, excluding the actual expenditure for the treatment and attendant charges. 13. Following the ratio in **Master Mallikarjun** (supra) and considering the fact the appellant has suffered a functional disability of 25% and that he was aged 7 years at the time of the accident, I award the 7 MACA No.1807 of 2011 appellant a consolidated compensation of Rs.3,00,000/-, excluding treatment expenditure and attendant charges. 14. In the present case, the Tribunal has awarded an amount of Rs.1,000/- towards transportation expenses, Rs.1,200/- towards bystander expenses, Rs.10,000/- towards future treatment expenses and Rs.46,214/- towards the actual medical expenses totalling to an amount of Rs.58,414/-. I confirm the finding in this regard, and hold that the appellant is entitled for reimbursement of the above amount of Rs.58,414/-. 15. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation, as modified and re-calculated above, following the ratio in **Master Mallikarjun** (supra), I 8 MACA No.1807 of 2011 hold that the appellant is entitled to a total compensation of Rs.3,58,414/- i.e., Rs.3,00,000/towards consolidated compensation and Rs.58,414/towards actual expenditure, viz., an enhancement of Rs.2,12,500/-. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.2,12,500/-** (Rupees Two Lakh Twelve Thousand Five Hundred only) with interest at the rate of 8% per annum from the date of claim petition till the date of deposit and a cost of Rs.5,000/-. The second respondent-insurer is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, and taking note of the fact that the appellant has attained majority, the compensation 9 MACA No.1807 of 2011 amount shall be disbursed to the appellant, in accordance with law. Sd/- sks/25.11.2021 **C.S.DIAS, JUDGE**