Muhassin s/o Muhammed v National Insurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940** **MACA.No. 44 of 2016** **AGAINST THE AWARD IN OPMV 228/2013 of ADL.D.C. & MACT,THODUPUZHA DATED 07-08-2015** ## **APPELLANT/3rd RESPONDENT:** **NATIONAL INSURANCE COMPANY LTD THODUPUZHA NOW REPRESENTED BY ITS ASST. MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI 35.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **MUHASSIN,S/O.MUHAMMED, AGED 20, KANNACHETH, 36 BHAGAM, KALIYAR KARA, VANNAPPURAM VILLAGE - 685 320.** **BY ADVS. SRI.ARUN JOSE THOMAS SMT.MABLE.C.KURIAN** ## **OTHER PRESENT:** **SRI.MATHEWS JACOB (SR.) FOR THE APPELLANT.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 44 of 2016** **2** ## JUDGMENT This appeal is directed against the award dated 07.08.15 in OP(MV) No. 228/13 of Motor Accident Claims Tribunal, Thodupuzha (for short 'the Tribunal'). The appellant is the 3[rd] respondent before the Tribunal. The award is under challenge for the reason that the compensation awarded by the Tribunal is on the higher side. The parties to this appeal are referred to hereinafter as the claimant and the 3[rd] respondent. 2. Sri.Mathews Jacob, the learned Senior Counsel advanced arguments on behalf of the appellants. Before adverting to the contentions raised by the learned counsel, it is relevant to have a discussion on the facts of the case in brief : At about 5.45 p.m. on 02.01.2013, while the claimant was proceeding through a public road at Plantation Kavala in Vannapuram in a motorcycle bearing registration No.KL-44/8040, another motorcycle bearing registration No.KBE/6766 proceeding from the opposite direction in a rash and negligent **MACA.No. 44 of 2016** **3** manner dashed against the same. Claimant was thrown down on the road with serious bodily injuries. Alleging that the accident was occurred due to the rash and negligent riding of the motor cycle bearing registration No.KBE/6766 by its rider and claiming Rs.2,00,000/- as compensation, claim petition numbered as above was preferred before the Tribunal. The owner, rider and insurer of the motorcycle bearing registration No.KBE/6766 were arrayed as respondents 1 to 3 in the claim petition. Admittedly, the motorcycle was validly insured with the 3[rd] respondent at the relevant time of accident. 3. The claim petition was tried by the Tribunal. On the side of the claimant documentary evidence was adduced as Exts.A1 to A9. On the side of the 3[rd] respondent, the policy certificate issued in respect of the offending motorcycle was marked as Ext.B1. On appreciation of the evidence on record the Tribunal found the rider of the motorcycle bearing registration No.KBE/6766, rash and negligent in riding the same and causing the accident. The Tribunal has also found the claimant entitled to get compensation and arrived at the **MACA.No. 44 of 2016** **4** quantum as Rs.3,03,565/-. The Tribunal had directed the 3[rd] respondent to deposit the said sum with interest at the rate of 9% per annum from the date of the claim petition till the date of realisation. 4. The contention of the learned Senior Counsel was that the claimant was a minor boy aged 17 years and was riding the motorcycle at the relevant time without possessing a valid driving license. According to the learned counsel, the Tribunal failed to consider the contribution of negligence of the boy despite the factum that the motorcycle was ridden by him without licence. According to the learned counsel, the Tribunal has fixed the entire liability on the rider of the other motorcycle and accordingly the liability to indemnify the insured was mulcted in full on the insurer of that vehicle, which is perverse and interference is called for. 5. Per contra, Sri.Arun Jose Thomas, the learned counsel on behalf of the claimant has contended that the method by which compensation has been arrived at by the Tribunal is incorrect. According to him, the claimant being a boy aged 17 **MACA.No. 44 of 2016** **5** years, the Tribunal ought to have granted compensation for disability in accordance with the directions issued by the Apex Court in **Mallikarjun v. Divisional Manager, National Insurance Co. Ltd. and others** [2013 ACJ 2445]. According to him, as per the dictum in the above case, the claimant having been established as 12% disabled following the injuries sustained in the accident, he is entitled to get Rs.3,00,000/- as compensation for disability. Therefore, the claimant is entitled to get Rs.1,40,000/- additionally under the head disability, since the Tribunal has granted only Rs.1,60,000/-. The learned counsel for the respondent seeks for modification of the award accordingly. 6. It is pertinent to note that cross objection was not filed by the claimant. It is the insurer that has come up in challenge of the award. The grievance of the insurer was that the claimant a boy aged 17 years, had ridden the vehicle without driving licence and therefore, his contribution to cause the accident cannot be ruled out, but the Tribunal failed to consider the same. According to him, the Tribunal ought to have **MACA.No. 44 of 2016** **6** reduced a sum in proportion to his negligence. The grievance secondly was that the victim being a boy aged 17 years only, the Tribunal has erred in assessing compensation for loss of earning power. According to him, the Tribunal ought to have granted compensation for disability by assessing the same based on notional income relevant for the year of accident and the percentage of disability. 7. The contention of the respondent was that the victim being a boy aged 17 years, he comes within the category of a child. According to him, if treated as a child, the dictum in **Mallikarjun** (supra) will be applicable in his case and if so he being 12% disabled, will be entitled to get Rs.3,00,000/- as compensation, towards disability. 8. It is true that the Tribunal failed to calculate compensation for disability of the victim, though it was established as 12%. The claimant boy was aged 17 years at the relevant time of accident. Undoubtedly he is a minor. But the question to be looked into is whether he is a child at the relevant time of accident or not. The Motor Vehicles Act, 1988 **MACA.No. 44 of 2016** **7** does not provide for definition of 'child'. In the case of a male, 21 years will be the age of majority and that of a female, 18 years. Whether child and minor are terms identical is to be gathered. In Collins Cobuild Advanced Learner's English Dictionary (New Edition), a child is described as a human being who is not yet an adult. As already stated, the claimant being a male aged 17 years, is not an adult, but only a minor. Therefore, in view of the meaning of the word child in the dictionary aforesaid, the claimant is a child. Therefore, having been established as suffered disability of 12% following the injuries sustained in the accident, in view of **Mallikarjun** (supra), the claimant is entitled to get Rs.3,00,000/- in lumpsum as compensation for disability, which would takes in, the compensation for pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, discomforts and loss of amenities in life on account of the permanent disability. Therefore, once Rs.3,00,000/- is fixed as the compensation payable for disability in accordance with the dictum in **Mallikarjun** (supra), the **MACA.No. 44 of 2016** **8** claimant will not be entitled to get compensation towards nonpecuniary heads as stated supra. 9. In the case on hand the claimant has been awarded Rs.1,60,000/- as compensation for loss of earning power. The claimant has not adduced any evidence to establish that on account of the injuries sustained in the accident, his earning power has been reduced. Moreover, the claimant was only a child aged 17 years at the relevant time of accident. Since the claimant is entitled to get compensation for disability in accordance with the fixation in **Mallikarjun** (supra), this Court finds justification in treating the compensation awarded under the head loss of earning power as the one granted towards disability. Since the sum payable as compensation as per **Mallikarjun** (supra) being Rs.3,00,000/-, Rs.1,40,000/- is payable in addition. It is pertinent to note from the award under challenge that Rs.75,000/- and Rs.50,000/- had already been awarded by the Tribunal towards pain and suffering and loss of amenities for which compensation the claimant is not entitled to separately, since the compensation for disability **MACA.No. 44 of 2016** **9** awarded in the above manner takes in those heads also. Since the claimant is found entitled to get Rs.1,40,000/- additionally under the head disability as directed by the Apex Court in **Mallikarjun** (supra) and dis-entitled to get compensation separately under non-pecuniary heads namely, pain and suffering and loss of amenities, this Court finds it justified to maintain the total compensation already awarded by the Tribunal without interfering with the same. The appeal deserves dismissal. In the result, the appeal is dismissed. Parties shall bear their respective costs. Sd/- **MARY JOSEPH JUDGE** ## **ttb**