Riyaz P.B. v. Abraham K.K. and United India Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943 ``` ## `MACA NO. 2994 OF 2009` ``` AGAINST THE AWARD DATED 20.10.2008 IN OP(MV)NO.1436/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## `APPELLANT/PETITIONER:` ``` RIYAZ.P.B. HOUSE, KALLETTUMKARA PO, THRISSUR DISTRICT ``` ``` BY ADV N. KRISHNANKUTTY PILLAI ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1ABRAHAM K.K., S/O. BAVA, PALAYAM KOTTUKKARAN HOUSE, KALLETTUMKARA P.O., TRISSUR DISTRICT. ``` ``` 2THE MANAGER UNITED INDIA INSURANCE CO.LTD , SOUTH JUNCTION, CHALAKUDY, THRISSUR DISTRICT. ``` ``` BY ADVS.S.K.AJAY KUMAR P.V.JYOTHI PRASAD ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2994/2009 -:2:- Dated this the 3[rd] day of December,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.1436/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the injuries that he sustained in an accident on 31.07.2004, when he was 17 years of age. According to him, on the above day, while he was travelling in an autorickshaw bearing registration No.KL-8/K-4862 along the Irinjalakuda-Chalakudy public road, a car bearing registration No.KL-8/N-5254(car), driven by the first respondent in a rash and negligent manner, hit the autorickshaw. The appellant sustained serious injuries, including a fracture of the left shaft femur, fracture of M.A.C.A.No.2994/2009 -:3:- the left clavicle, fracture of the 2[nd] to 6[th] ribs with flail segment and bilateral hemothorax. The appellant was treated as an inpatient at the Trichur Heart Hospital for a period of 44 days. He was a coolie worker by profession and was earning a monthly income of Rs.4,000/-. The car was owned and driven by the first respondent and insured with the second respondent. The appellant claimed a compensation of Rs.4,00,000/from the respondents. 3. Another passenger in the autorickshaw, who also sustained injuries in the accident, filed O.P. (MV)No.1423/2004 before the same Tribunal, seeking compensation from the respondents. 4. The first respondent had filed separate written statements in both the claim petitions, inter alia, contending that the accident occurred due to the negligence of the driver of the autorickshaw. Nevertheless, the first respondent admitted that the car was validly insured with the second respondent. M.A.C.A.No.2994/2009 -:4:- 5. The second respondent had filed separate written statements reiterating the same pleadings as that of the first respondent, but admitted that the car was covered by a valid insurance policy. 6. The Tribunal consolidated and jointly tried both the claim petitions. 7. The appellant was examined as PW1 and Exts.A1 to A12 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to realise from the second respondent an amount of Rs.2,72,500/- with interest at the rate of 7% from the date of petition till the date of realisation and proportionate costs. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. M.A.C.A.No.2994/2009 -:5:- 10. Heard; Sri. N. Krishnankutty Pillai, the learned counsel for the appellant and Sri. S.K. Ajayakumar, the learned counsel appearing for the second respondent-insurer. 11. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 12. Admittedly, the appellant was born on 01.05.1987. Thus, he was 17 years at the time of the accident and was represented by his next friend and father in the proceeding. The appellant’s majority was recorded as per the order dated 29.08.2008 in I.A.No.2426/2007. 13. The appellant had produced Ext.A11 disability certificate, wherein his whole body disability is assessed at 31.1%. 14. The Tribunal, after analysing the pleadings and materials on record, particularly the treatment M.A.C.A.No.2994/2009 -:6:- records, fixed the ‘functional disability’ of the appellant at 13%. 15. In **Master Mallikarjun v. Divisional Manager, the National Insurance Company Ltd. & Anr.** [(2014) 14 SCC 396], the Hon’ble Supreme Court has prescribed a formula to calculate the compensation to be paid to minor children who suffer ‘permanent disability’ in road accidents. It is, inter alia, declared, if a child sustains a ‘permanent disability’ in the range of 10% to 30% to the whole body, a consolidated amount of Rs.3,00,000/- has to be paid to the injured/claimant, excluding the actual treatment expenditure and attendant charges. 16. In the instant case, the appellant was a minor at the time of the accident and Ext.A11 certificate establishes that he has suffered a whole body permanent disability of 31.1%. However, the Tribunal assessed the appellant’s ‘functional disability’ at 13%, which finding, I do confirm. Therefore, I am of the firm M.A.C.A.No.2994/2009 -:7:- view that the ratio in **Master Mallikarjun** (supra), has to be followed in the present case. Consequentially, I award the appellant a consolidated amount of Rs.3,00,000/-, as compensation for loss due to disability, excluding the treatment and attendant charges. 17. In the case at hand, based on Ext.A12 medical bills, the Tribunal has awarded the appellant an amount of Rs.1,88,100/- towards treatment charges/medical expenses. Similarly, as evident from Exts.A4, A7 and A8 discharge summaries, the appellant was treated as an inpatient for a period of 44 days. As the accident occurred in the year 2004, I award him an amount of Rs.250/- per day for a period of 44 days, which works out to Rs.11,000/-. The Tribunal has awarded an amount of Rs.2,000/- towards ‘transportation expenses’, which is reasonable. Therefore, I award the appellant an amount of Rs.2,01,100/-, towards ‘medical expenses’ and M.A.C.A.No.2994/2009 -:8:- ## ‘incidental charges’. 18. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decision, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above i.e., Rs.3,00,000/- towards consolidated compensation and Rs.2,01,100/- towards ‘medical treatment expenses’ and ‘incidental charges’, totaling to an amount of Rs.5,01,100/-, instead of Rs.2,72,500/- awarded by the Tribunal. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.2,28,600/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 303 days i.e., the period of delay in preferring this appeal and as ordered by this Court on 24.09.2021 in C.M.Appln.No.1/2009, and a M.A.C.A.No.2994/2009 -:9:- cost of Rs.10,000/-. The second respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/03.12.21 //True copy/ P.A.To Judge