RiJoy v. Joseph Mathew & United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938 MACA.No. 442 of 2007 ( ) ------------------------AGAINST THE AWARD IN OPMV 485/2002 of MACT,KALPETTA DATED 20-07-2006 APPELLANT(S)/PETITIONER: --------------------------------- RIJOY, AGED19 YEARS S/O.GEORGE VARGHESE, KUTTIYIL HOUSE, THONDERNADU POST, KORAM, MANANTHAVADY TALUK, WAYANAD DT. ## BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENT(S)/RESPONDENT: ------------------------- * 1.JOSEPH MATHEW, AGED 32 YEARS, S/O.MATHEW, ERANHIKKAL HOUSE, VILLIAPALLY, KALLACHI, KOZHIKODE DISTRICT, (R.C.OWNER CUM DRIVER OF JEEP NO.K.L.11B. 3434). 2. M/S.UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE NO.II, SEEMA TOWERS, 2ND FLOOR, BANK ROAD,, MAVOOR ROAD JN.,KOZHIKODE., (INSURER OF JEEP NO.KL.11B. 3434). *(R1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 24.5.2016 IN I.A.NO.1320/2016 IN MACA.442/2007) R2 BY ADV. SRI.P.JACOB MATHEW R2 BY ADV. SRI.MATHEWS JACOB (SR.) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.442 OF 2007 ==========================** Dated this the 20[th] day of July, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 20.07.2006 in O.P.(MV).No.485 of 2002 passed by the Motor Accidents Claims Tribunal, Kalpetta, Wayanad. The petitioner, who was a minor, sustained injuries in a motor vehicle accident that occurred on 10.2.2002 at about 3.30 p.m. On that day, he was riding his bicycle. When he reached Marachuvadu, a jeep bearing Reg.No.KL-11-B-3434 knocked him down and thereby he sustained injuries. He was immediately taken to District Hospital, Mananthavady and from there, he was referred to Medical College Hospital, Kozhikode. He remained there as an inpatient from **M.A.C.A.442/2007** 2 10.2.2002 to 4.3.2002. It is in the said circumstances that he filed the above mentioned claim petition under section 166 of the Motor Vehicles Act through his father and next friend, seeking a compensation of `5,50,000/-. The Tribunal awarded a total compensation of `31,700/- with interest at 6% per annum from the date of the petition till realisation. It is aggrieved by and dissatisfied with the quantum of compensation that the captioned appeal has been preferred. 2.We have heard the learned counsel for the appellant and also the learned counsel appearing for the insurance company. 3.A perusal of the impugned award would reveal that in the accident, the appellant had incurred permanent disability. Going by Ext.C1 disability certificate, the medical board assessed his disability as 10%. In the light of the fact that the appellant was aged 14 years on the date of the accident and he incurred permanent disability **M.A.C.A.442/2007** 3 (whole body) of 10%, we are of the view that the claim of the petitioner for compensation has to be decided in the light of the decision in **Mallikarjun v. Divisional Manager, National Insurance Co.Ltd. (2013 ACJ 2445)** . In this context, it is relevant to refer to the structure of compensation given in paragraph 12 of the said decision. Going by the said decision, if whole body permanent disability is above 10% and up to 30%, the claimant would be entitled to get `3,00,000/-. But at the same time, if the disability is up to 10% necessarily including 10%, going by the said decision, compensation payable is only `1,00,000/- unless there are exceptional circumstances to take a different yardstick other than one laid down by the Apex Court in the said decision. After hearing the learned counsel on both sides, we are of the view that there are no exceptional circumstances existing in the case on hand, to take a different yardstick other than one laid down by the Apex Court in **Mallikarjun** 's case. Thus, taking into account the fact that the appellant was aged only 14 years on the date of the accident and in the accident, he sustained 10% permanent **M.A.C.A.442/2007** 4 disability (whole body), in the light of the decision in **Mallikarjun** 's case, the appellant is entitled to get `1,00,000/- for permanent disability. In addition to that, the appellant is entitled to get only pecuniary loss. He remained as an inpatient from 10.2.2002 to 4.3.2002. Since he was a minor, his parents would not have been in a position to leave him lonely in the hospital. In other words, they must have loss of income during the said period. Taking note of the year of the accident and the period of hospitalisation, we are of the view that an amount of `10,000/- can be granted under the said head. It is awarded. Under the heads transportation to hospital, bystanders and medical the Tribunal expenses expenses, granted just compensation viz., `1,000/- each. For extra nourishment, an amount of `2,000/- was granted and for damage to clothing and articles, an amount of `500/- was granted. In such circumstances, the appellant is entitled to get a total compensation of `1,15,500/-. But, the Tribunal already granted an amount of `31,700/-. After deducting the said amount, the appellant would be entitled to get an amount of `83,300/-. **M.A.C.A.442/2007** 5 The said enhanced amount will carry interest @ 8% per annum from the date of the petition till realisation. The respondent is directed to deposit the said amount within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.442/2007** 6 **C.T. RAVIKUMAR, J.** **M.A.C.A.442/2007** 7 **JUDGMENT September, 2010**