Sonia @ Sonika v. Yohannan, Mohanan, The Manager, National Insurance Co. Ltd., KC Traders, Jayaraj, United India Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 ``` ## `MACA NO. 3002 OF 2009` ``` AGAINST THE AWARD DATED 22.04.2009 IN OP(MV)NO.175/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA ``` ## `APPELLANT/PETITIONER:` ``` SONIA @ SONIKA, AGED 19 YEARS, D/O. SANKARAN, NJARELI HOUSE, NEAR POLICE QUARTERS, P.O MALA,THRISSUR DISTRICT. ``` ## `BY ADV SRI.N.KRISHNANKUTTY PILLAI` ## `RESPONDENTS/DEFENDANTS:` - `1 YOHANNAN, MANAGING PARTNER, HIGHWAY CONTRACTORS, T.B ROAD,KOCHI.` - `2 MOHANAN, S/O MANIKKIAN PERALAPPILLY HOUSE, PERTHOLY VILLAGE,PALAKKAD DISTRICT.` - `3 THE MANAGER, NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE, IST FLOOR, AJAY VIHAR, M.G ROAD,KOCHI.` - `4 MANAGING PARTNER, K.C.K TRADERS, 75/444, MARKET ROAD, CHALAKUDY.` - `5 JAYARAJ, S/O RADHAKRISHNAN, THOTTIPARAMBIL HOUSE, PARUTHIPARAMBU DESOM, ALOOR VILLAGE, THRISSUR DISTRICT.` M.A.C.A.No.3002/2009 -:2:- ``` 6THE MANAGER UNITED INDIA INSURANCE CO.LTD, PB NO.66,ALENGADAN BUILDING, IRINJALAKUDA, THRISSUR DISTRICT. ``` ``` BY ADVS.SMT.P.A.REZIYA SRI.GEORGE CHERIAN (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.3002/2009 -:3:- Dated this the 24[th] day of March,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV)No.175/2004 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 – through her mother and next friend, as she was a minor – under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the injuries sustained to her in an accident on 18.10.2003. It was her case that, while she was standing at Perambra bus stop, a tipper lorry bearing registration No.KL-9/A-3740, driven by the second respondent in a negligent manner, hit another tipper lorry and then the tipper lorry hit the appellant. The appellant sustained multiple injuries, including a fracture of the left calcaneus, fracture left medial mallecolus, fracture base of the 5[th] matatarsal and a crush injury on her left M.A.C.A.No.3002/2009 -:4:- ankle. She was treated as an inpatient for a period of 66 days at the Elite Mission Hospital, Koorkkenchery. The tipper lorry was owned by the first respondent and insured with the third respondent. The other lorry was owned, driven and insured with the respondent Nos.4 to 6, respectively. The appellant was a student, who was only 13 years of age. Hence, the appellant claimed a compensation of Rs.4,76,000/- from the respondents, which claim was limited to Rs.4,00,000/-. 3. The respondent Nos.1, 2, 4 and 5 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement admitting that the tipper lorry had a valid insurance coverage. However, the third respondent blamed the fifth respondent for causing the accident. 5. On the contrary, the sixth respondent had filed a written statement, admitting the insurance coverage of the other lorry. The sixth respondent contended that the accident occurred due to the M.A.C.A.No.3002/2009 -:5:- ## negligence of the second respondent. 6. The appellant had produced and marked Exts.A1 to A11 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, and after appreciating Exts.A7 and A8 disability certificates, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.2,40,200/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate costs. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. N. Krishnankutty Pillai, the learned counsel for the appellant/petitioner, Smt. Latha Susan Cherian, the learned counsel appearing for the third respondent-insurer of the tipper lorry and M.A.C.A.No.3002/2009 -:6:- Smt. P.A. Reziya, the learned counsel appearing for the sixth respondent-insurer of the other lorry. 10. The sole 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:** 11. Ext.A2 charge sheet filed by the Kodakara Police in Crime No.307/2003 proves that the accident occurred due to the negligence of the second respondent – the driver of the tipper lorry. Indisputably, the first respondent was the owner and third respondent was the insurer of the tipper lorry. The respondents have not let in any evidence to discredit Ext.A2 charge sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. M.A.C.A.No.3002/2009 -:7:- ## **Disability:** 12. The appellant had produced Exts.A7 and A8 disability certificates to substantiate that the appellant had suffered a ‘permanent disability’ of 40 and 42%, respectively. The Tribunal, after appreciating Exts.A7 and A8, fixed the ‘permanent disability’ of the appellant at 17%. 13. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, in the case of an injury claim, what needs to be looked into is the ‘functional disability’ of the injured/claimant. It is also held that, if the Tribunal is not satisfied with the disability certificate produced before it, it is imperative for the Tribunal to refer the to a injured/claimant duly constituted Medical Board. It is further held that, if the disability certificate is marked in evidence without any objection from the respondents, the same can be taken on its face value. M.A.C.A.No.3002/2009 -:8:- 14. In the instant case, Exts.A7 and A8 were marked in evidence by the Tribunal, without any objection from the side of the respondents. 15. The Tribunal, after appreciating Exts.A7 and A8, has fixed ‘the permanent whole body disability’ of the appellant at 17.%. 16. I have re-appreciated Exts.A7 and A8. I find that as per Exts.A7 and A8, the appellant has a loss of range of movements to the extent of 22.5%, loss of muscle strength to the extent of 6%, stability(difficulty in climbing steps, squatting) component 10%, additional weightage for pain and scarring and deformity 12%. Thus, totalling to 41.5% rounded off to 42%. 17. On a consideration of the fact that the appellant was only 13 years at the time of the accident, and she has difficulty in climbing stairs, squatting and sitting cross legged and also has loss of muscle strength, I fix the functional disability of the M.A.C.A.No.3002/2009 -:9:- appellant at 30%. 18. The Hon’ble Supreme Court in **Master Mallikarjun v. Divisional Manager, the National Insurance Company Ltd. & Anr.** [(2014) 14 SCC 396], has categorically laid down the law with respect to payment of the compensation to minor children who suffer ‘permanent disability’ in the range of 10% to 30% to the whole body. The Hon’ble Supreme Court has, inter alia, held that in such cases, the injured child is entitled to a consolidated compensation of Rs.3,00,000/-, in addition to the actual treatment expenditure and attendant charges. 19. In the case at hand, as the appellant was 13 years at the time of the accident and I have fixed her ‘functional disability’ at 30%, I am of the firm 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/-. I also confirm the amounts of Rs.1,13,800/- awarded by M.A.C.A.No.3002/2009 -:10:- the Tribunal towards ‘medical expenses’, Rs.6,500/awarded towards ‘bystander expenses’ and Rs.3,000/awarded towards ‘transportation expenses’, thus totalling to an amount of Rs.4,23,300/-. After deducting the amount of Rs.2,40,200/- already awarded by the Tribunal, I hold that the appellant is entitled to an enhancement of Rs.1,83,100/-. In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.1,83,100/-** 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 121 days (i.e., the period of delay in preferring this appeal and as ordered by this Court on 26.10.2018 in C.M.Appln.No.3577/2009) and a cost of Rs.10,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this M.A.C.A.No.3002/2009 -:11:- judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant, after deducting her liability towards court fee and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/24.03.22 //True copy/ P.A.To Judge