MINOR AKHIL (through mother ANITHA VAZHAPPILLY) v. SAJI LAL & OTHERS; MANAGER HDFC CHUBB GENERAL INSURANCE CO. LTD.

**MACA.No.295 OF 2010** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.295 OF 2010(M)** **AGAINST THE AWARD IN OP(MV) 1718/2005 DATED 21-08-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **MINOR AKHIL,REP.BY MOTHER ANITHA VAZHAPPILLY HOUSE, VALAPPAD DESOM, VILLAGE,, CHAVAKKAD TALUK, REP. BY MOTHER, MRS.ANITHA,, W/O.LATE AJITHAN, VAZHAPPILLY HOUSE, VALAPPAD, DESOM, VILLAGE, CHAVAKKAD TALUK, C/O.THARAYILHOUSE, KA** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** **1 SAJI LAL & OTHERS KOTHAKULAM BEACH ROAD DESOM, VALAPPAD, VILLAGE, THRISSUR DISTRICT. 2 SATHEESH S/O.CHIDAMBARAM 10/211 PARAMATT HOUSE, POOKATTUPADY,, KALAMASSERY, KOCHI. 3 THE MANAGER HDFC CHUBB GENERAL INSURANCE CO.LTD., BRANCH OFFICE,, 5TH FLOOR, NARIMAN POINT, MUMBAI - 400021.** **R1, R3 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.295 OF 2010** **2** ## **JUDGMENT** ## **Dated this the 30[th] day of March 2021** The appellant was the petitioner in O.P.(MV) No.1718/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents in the claim petition. 2. The facts, in brief, in the claim petition, relevant for the determination of the appeal, are: on 28.11.2005, when the appellant was a minor child and was riding his bicycle along the Koothattukulam Beach Road, he was hit down by a motorcycle bearing Reg. No.KL7/AU 4357 (offending vehicle) ridden by the 1[st] respondent. The offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a 8[th] Standard student. The appellant sustained serious injuries including a **MACA.No.295 OF 2010** **3** fracture of the right xygoma, fracture of right lateral wall of the orbit, fracture of proximal phalanx of the right index finger and a right traumatic optic neuropathy and loss of vision of the right eye. The appellant was treated as an inpatient at the West Fort Hospital for the period from 28.5.2005 to 3.12.2005. He is still under treatment at the Aravind Eye Hospital, Koimbatore. The respondents 1 to 3 were jointly and severally liable to pay compensation to the appellant, which he quantified at Rs.2,15,000/-, but limited to Rs.2,00,000/-. 3. The 1[st] respondent filed a written statement admitting the accident, but contended that the accident occurred solely due to the negligence on the part of the appellant. The 2[nd] respondent did not contest the proceedings and was set ex parte. 4. The 3[rd] respondent filed a written **MACA.No.295 OF 2010** **4** statement admitting that the offending vehicle had a valid insurance coverage. However, it is contended that the appellant was responsible for the accident. 5. Exts.A1 to A19 were marked on the side of the appellant in evidence. Ext.X1 treatment record was marked as a Court Exhibit. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award permitted the appellant to realise an amount of Rs.98,500/- from the respondents jointly and severally with interest at the rate of 7% per annum from the date of petition till the date of realisation along with proportionate costs. The 3[rd] respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the **MACA.No.295 OF 2010** **5** petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3rd respondent/Insurance Company. 9. The question that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. In Ext.A2 charge-sheet filed by the Police after investigation, it is found that the accident occurred solely due to the negligence on the part of the 1[st] respondent, who drove the offending vehicle in a rash and negligent manner. Ext.A3 wound certificate and Exts.A4 to A6 discharge summaries substantiate that the appellant sustained serious injuries and was under medical treatment. Ext.A16 issued by a renowned eye hospital proves that the **MACA.No.295 OF 2010** **6** appellant had suffered serious injuries on his eye. Ext.A17 medical certificate issued by another renowned hospital in Opthalmology Care has certified that the appellant has a visual disability of 20%. The Tribunal after considering the above materials came to the conclusion that the the appellant has a whole body disability of 20%. However, the Tribunal only awarded an amount of Rs.98,500/- as compensation. 11. The Hon'ble Supreme Court in **Master Mallika Arjun v. Divisional Manager, National Insurance Co.Ltd and another** [2013 (3) KLJ 815] has categorically laid down the law that in the case of disability of a minor child, who has sustained disability between 10 and 30% to the whole body, an amount of Rs.3,00,000/- has to be paid as consolidated compensation excluding the actual **MACA.No.295 OF 2010** **7** expenditure for treatment and attendant charges etc. 12. Following the ratio in **Master Mallika Arjun** (supra), I am of the considered opinion that the appellant is entitled for a consolidated compensation as laid down in **Mallika Arjun** at Rs.3,00,000/- excluding the treatment expenses. 13. In the present case, as per Ext.A19 bills, it is seen that the appellant had incurred an amount of Rs.27,000/- towards medical expenses, an amount of Rs.500/- towards bystander expenses and an amount of Rs.2,000/as transportation expenses. Therefore, the appellant is entitled for reimbursement of the expenses under the above heads, totalling to Rs.29,500/-. Hence the appellant is entitled to a total amount of Rs.3,29,500/- as consolidated compensation **MACA.No.295 OF 2010** **8** and the actual expenses. 14. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the aforecited decision, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above. In result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.2,31,000/- with interest at the rate of 7% per annum from the date of petition till the date of realisation with proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in this appeal with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The appellant/petitioner would be at liberty to move the Tribunal for **MACA.No.295 OF 2010** **9** withdrawal of the enhanced compensation, in accordance with law. **Sd/-** Ma/30.3.2021 /True copy/ **C.S.DIAS JUDGE**