Kerala High Court
K.M.Nitheesh vs Raghavan And Others on 1 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
MACA NO. 1398 OF 2009
AGAINST THE AWARD IN OP(MV)NO.3456/2002 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
K.M.NITHEESH,
S/O.K.M.MUKUNDAN NAMBIAR,
AGED 19 YEARS,
MARUTHOOR HOUSE,,
CHEEKKILODU POST,
VIA ATHOLI, KOZHIKODE.
BY ADVS.
SRI.K.M.JAMALUDHEEN
SMT.LATHA PRABHAKARAN
RESPONDENTS/RESPONDENTS:
1 RAGHAVAN, S/O.SANKARAN,
POOLAKKAPOYIL HOUSE,
NADUVANNUR POST,, KOZHIKODE.
2 ABDUL AZEEZ T.P., PUTHIYEDATH HOUSE
PUNNASSERY POST,
NARIKUNI,, KOZHIKODE.
3 THE UNITED INDIA INSURANCE CO. LTD
DIVISIONAL OFFICE,,
1. P.B.NO.192,
SEEMA TOWERS, MAVOOR ROAD,,
KOZHIKODE,
2. VELIMANNA BUILDINGS,, MAIN RAOD
THAMARASSERY,KOZHIKODE.
BY ADV SMT.S.JAYASREE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA No. 1398 of 2009
2
C.S.DIAS,J
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MACA No. 1398 of 2009
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Dated this the 1st day of July, 2021
JUDGMENT
The appellant was the petitioner in OP (MV)
No.3456 of 2002 on the file of the Principal Motor
Accidents Tribunal, Kozhikode. The respondents in
the appeal were the respondents in the claim petition.
2. The facts in brief in the claim petition,
relevant for the determination of the appeal are: the
appellant, a 12 year old boy, while travelling in an
autorickshaw bearing registration KL 11/G 8240 on
29.09.2002 along the Cheekilodu-Koomulli road, the
Bus bearing registration No.KL11/P/5509 (offending
vehicle) came at high speed and hit the autorickshaw.
The offending vehicle was owned by the 1st
respondent and insured with the 3rd respondent. The
MACA No. 1398 of 2009
appellant sustained serious injuries including a
comminuted fracture L/3 of the shaft femur (Rt)
fracture Supra malleolus right leg and fracture
maxilla. The appellant was treated as an in-patient at
the Medical College Hospital, Calicut from 29.09.2002
to 05.11.2002. The accident occurred on account of
the negligence on the part of the driver of the Bus.
Therefore, the appellant claimed a compensation of
Rs.4,00,000/- from the respondents, but limited it to
Rs.2,00,000/-.
3. The owner of the autorickshaw was also
impleaded as the 2nd respondent.
4. The respondents 1 and 2 did not contest the
proceedings.
5. The 3rd respondent-insurance company filed
a written statement admitting that the offending
vehicle as well as the autorickshaw had valid
insurance policies issued by the 3rd respondent. It was
MACA No. 1398 of 2009
contended that the injury sustained by the appellant
were only minor in nature and, therefore, the
appellant was not entitled for compensation.
6. The appellant was examined by a duly
constituted Medical Board of the Medical College
Hospital, Calicut. The Medical Board certified that the
appellant had a permanent disability of 2%.
7. The appellant produced and marked Exts.A1
to A5 series in evidence. The Medical Board report
was marked as Ext.C1.
8. The Tribunal, after analysing the pleadings
and materials on record, by the impugned award
allowed the claim petition, in part, by directing the 3 rd
respondent to pay an amount of Rs.22,727/- with
interest at the rate of 7.5% per annum from the date
of petition till the date of realization.
9. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
MACA No. 1398 of 2009
10. Heard the learned counsel for the appellant
and the learned counsel appearing for the 3 rd
respondent-insurance company.
11. The sole question that emerges for
consideration in the appeal is whether the quantum of
compensation awarded by the Tribunal is reasonable
and just?
12. The law with respect to payment of
compensation to children is no longer res integra in
view of the law laid down by the Hon'ble Supreme
Court in Master Mallikarjun v. Divisional
Mananager, The National Insurance Company
Limited & Anr [2013(3) KLJ 815]. The Hon'ble
Supreme Court has held that in the case of children
suffering permanent disability up to 10%, a
consolidated compensation of Rs.1,00,000/- has to be
awarded, unless there are exceptional circumstances
to adopt a different yardstick.
MACA No. 1398 of 2009
13. In the light of the law laid down in the afore-
cited decision and the fact that the appellant was only
12 years at the time of accident and he has suffered
2% disability, I hold that the ratio in Master
Mallikarjun (supra) squarely applies to the facts of
the case.
14. Consequently, I modify the compensation
awarded as per the impugned award, by directing the
3rd respondent to pay the appellant an amount of
Rs.1,00,000/- as compensation towards disability
along with the medical bills of Rs.3,977/-, incidental
charges of Rs.1,100/- and transport expenses of
Rs.750/- i.e., a total amount of Rs.1,06,227/-.
In the result, the appeal is allowed, in part, by re-
fixing the compensation at Rs.1,06,227/- (Rupees one
lakh six thousand two hundred and twenty seven only)
with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit, after excluding
MACA No. 1398 of 2009
the period of 218 days i.e., the delay in preferring the
appeal as ordered by this Court on 19.03.2021 in
C.M.Appl.No.1598 of 2009. The 3rd respondent shall
deposit the compensation amount before the Tribunal
with interest within a period of two months from the
date of receipt of a certified copy of the judgment.
The Tribunal shall release the compensation amount
to the appellant, in accordance with law.
Sd/-
C.S.DIAS,JUDGE
dlk 01.07.2021
