Sanish P Thomas v. Shijo and National Insurance Co. Ltd. and Manager, RPM High School

MACA NO. 564 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943** **MACA NO. 564 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1920/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/S:** SANISH P THOMAS, S/O.THOMAS,PUTHOOR HOUSE, KANNARA.P.O., PEECHI,, THRISSUR DISTRICT. BY ADV SRI.T.C.SURESH MENON ## **RESPONDENT/S:** 1 SHIJO, S/O.DEVASSY, KANNAMPUZHA HOUSE, AYYAMPUZHA.P.O.,, ERNAKULAM DISTRICT. 683581 (DELETED) RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DT.23.09.2021 IN IA. NO.1/2021 IN MACA 564/2011. 2 THE NATIONAL INSURANCE CO.LTD. COCHIN BRANCH.682016 3 THE MANAGER, RPM HIGH SCHOOL KUMBALAM.P.O., ERNAKULAM DISTRICT.682506 BY ADV SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 564 OF 2011 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1920/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The original respondents in the appeal were the respondents before the Tribunal. At the instance of the appellant, the 1[st] respondent in the appeal has been deleted from the party array. Therefore, for the sake of convenience, the parties are referred to as per the status before the Tribunal. 2. The appellant had, through his next friend and father, 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 27.12.2003. It was his case that, on the above date, while he was traveling pillion on a motor cycle bearing registration No. KL-8D/2513 through the Pattikkad – Kannnara road, a tempo van bearing registration No. KL-7R 7956 (van), driven by the 2[nd] respondent in a rash and negligent manner, hit the motor cycle. The petitioner and rider of the motor cycle sustained injuries. They were treated at the Jubilee Mission Hospital, MACA NO. 564 OF 2011 3 Thrissur, from the date of accident till 10.01.2004. The petitioner was aged 17 years and was a plus two student. He sustained fractures to his left knee and below the knee. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. Hence, the petitioner claimed a compensation of Rs.2,02,500/- from the respondents, which claim was limited to Rs.2,00,000/- 3. The rider of the motor cycle, who also sustained injuries in the same accident filed OP(MV) No.1937/2004, before the same Tribunal. 4. The 1[st] respondent- the Manager of a High School – the owner of the van, died during the pendency of the claim petition. The successor Manager of the school was impleaded as the additional 4[th] respondent – the 3[rd] respondent in the appeal. 5. The respondents 2 and 4 did not contest the proceeding and were set ex-parte. 6. The 3[rd] respondent had filed separate written statements in both the claim petitions, admitting that the van had a valid insurance policy. However, the 3[rd] respondent MACA NO. 564 OF 2011 4 contended that the accident occurred due to the negligence of the rider of the motor cycle and that the van did not have a fitness certificate or valid permit. Therefore, the owner of the van had violated the insurance policy conditions. Hence, the 3[rd] respondent may be exonerated of its liability. 7. The Tribunal consolidated and jointly tried the two claim petitions. The petitioners produced and marked Exts.A1 to A12 series in evidence. The 3[rd] respondent produced the insurance policy which was marked as Ext.B1. 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 petitioner to recover from the 3[rd] respondent an amount of Rs.54,000/- with interest and proportionate cost, but on the finding of violation of the insurance policy conditions, the 3[rd] respondent was permitted to recover the compensation amount from the additional 4[th] respondent. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri. T.C. Sureshmenon, the learned counsel MACA NO. 564 OF 2011 5 appearing for the petitioner and Smt. Sarah Salvi, the learned counsel appearing for the 2[nd] respondent/insurer. 11. Although service of notice on the original 3[rd] respondent in the appeal/4[th] respondent before the Tribunal is complete, there is no appearance for them. 12. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 13. Ext.A2 final report filed by the Peechi Police in Crime No.218/2003, substantiates that the accident occurred due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent - Manager of the RPM High School was the registered owner of the van and the 3[rd] respondent was the insurer. On the death of the 1[st] respondent, the successor Manager was impleaded as the additional 4[th] respondent before the Tribunal - the 3[rd] respondent in the appeal. The respondents have not let in any evidence to discredit Ext.A2 charge sheet. Therefore, going by the law laid down by this Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** MACA NO. 564 OF 2011 6 [2011 (3) KLT 648], and finding of the Police in Ext.A2 final report that it was the 2[nd] respondent who was negligent in causing the accident is to be accepted. Nevertheless, since, the 3[rd] respondent had specifically raised a contention that the owner of the van – the 1[st] respondent/4[th] respondent - had violated the insurance policy conditions by plying the van without fitness certificate and permit, the same not being produced, the finding of the Tribunal that the respondents 1 and 4 had violated the insurance policy conditions is confirmed. Hence, the 3[rd] respondent is directed to pay the compensation amount and recover it from the 4[th] respondent. ## **Quantum of compensation** 14. The petitioner was a minor child aged 17 years at the time of the accident. Although he had produced Ext.A8 disability certificate issued by the Assistant Professor Orthopedics of the Medical College Hospital, Thrissur, who has certified that the petitioner has a permanent physical disability of 12%, the Tribunal declined to accept the said certificate for the reason that the petitioner failed to examine the Doctor, MACA NO. 564 OF 2011 7 who issued the certificate. 15. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has categorically held that in the case of an injury, if the Tribunal is not satisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to the Medical Board. 16. In the instant case, the Tribunal after accepting and marking Ext.A8 disability certificate, without any demur or protest from the respondents, has erroneously discarded the disability certificate for want of proof, and has failed to refer the petitioner to the Medical Board. 17. Taking into consideration the fact that the accident occurred in the year 2003, at this distance of time I feel it would be travesty of justice to refer the petitioner to a Medical Board. Hence, I accept the assessment in Ext.A8. 18. Again in **Raj Kumar vs. Ajay Kumar** (supra), the Honourable Supreme Court has held that what needs to be looked into in the case of injury is the functional disability of the injured/claimant. The Doctor has certified that the MACA NO. 564 OF 2011 8 petitioner has a permanent physical disability of 12%. 19. Considering the fact that the petitioner was aged 17 years of age and he has only ankylosis with medial instability of his left knee, I fix his functional disability at 10%. 20. The Honourable Supreme Court in **Master Mallikarjun vs. Divisional Manager, National Insurance** **Co. Ltd. and another** [2013 (3) KLJ 815] has laid down the broad parameters to fix the compensation in the case of children who have sustained permanent disability in accidents. It is held in the case where children have suffered disability upto 10%, a consolidated amount of Rs.1,00,000/- has to be paid as compensation excluding the actual expenditure for treatment. 21. Following the ratio in **Master Mallikarjun** (supra) and in view of the fixation of the functional disability of the petitioner at 10%, I hold that the petitioner is entitled to a consolidated compensation of Rs.1,00,000/- excluding incidental expenses. 22. In the instant case, the petitioner had incurred an amount of Rs.23,839/- towards the medical expenses, MACA NO. 564 OF 2011 9 Rs.1,000/- towards transportation expenses and Rs.2,000/towards bystander expenses. Thus, I hold that the petitioner is entitled for reimbursement of the aforesaid amounts, totalling to an amount of Rs.26,839/-. 23. Thus, I hold that the petitioner is entitled to a total compensation of Rs.1,26,839/- (i.e.,Rs.1,00,000/- towards consolidated compensation and Rs.26,839/- towards incidental expenses). In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.72,839/- with interest on the said amount @ 8% per annum from the date of petition till the date of deposit, after deducting interest for a period of 138 days i.e, the period of delay in filing the appeal and as ordered by this Court on 23.09.2021 in C.M.Appln. No.920/2011, and a cost of Rs.5,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the 10 MACA NO. 564 OF 2011 petitioner in accordance with law. After the 3[rd] respondent has deposited the amount, the 3[rd] respondent is permitted to recover the compensation amount from the 3[rd] respondent in the appeal/4[th] respondent before the Tribunal in accordance with law. **Sd/-** **C.S.DIAS, JUDGE** rkc