Kerala High Court
Mathew.C.L vs Stephen Stanley on 25 November, 2021
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MACA No.1807 of 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA,
1943
MACA NO. 1807 OF 2011
AGAINST THE ORDER/JUDGMENT IN OPMV 1192/2005 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR
APPELLANT/S:
MATHEW.C.L(MINOR)
S/O. LIJI PHIBY, CHUNDANGAL HOUSE, KOTTAMAM,,
NEELESHWARAM P.O., REPRESENTED BY HIS FATHER
LIJI PHIBY, AS GUARDIAN AND NEXT FRIEND.
BY ADVS.
SRI.ANIL S.RAJ
SRI.G.ARUN GOPAN
SMT.K.N.RAJANI
RESPONDENT/S:
1 STEPHEN STANLEY
THARAYIL HOUSE, KADAPPARA, MALAYATTOOR P.O.,,
PIN-683 587.
2 NATIONAL INSURANCE COMPANY LIMITED
P.B.NO.89, URUMBATH BUILDINGS, PUMB JUNCTION,,
ALUVA-683 101.
3 JACOB
THARAYIL HOUSE, KADAPPARA, MALAYATTOOR P.O.,,
PIN-683 587.
BY ADV SRI.LAL GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING
COME UP FOR ADMISSION ON 25.11.2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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MACA No.1807 of 2011
C.S.DIAS, J.
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MACA No.1807 of 2011
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Dated this the 25th day of November, 2021.
JUDGMENT
The appellant was the petitioner in OP(MV)
1192/2005 on the file of the Motor Accidents Claims
Tribunal, Perumbavoor. The respondents in the
appeal were the respondents before the Tribunal.
2. The appellant had filed the claim petition
through his next friend and father, under Sec.166 of
the Motor Vehicles Act, 1988, claiming compensation
on account of the injuries that he sustained in an
accident on 12.3.2005. It was the his case that, while
he was proceeding through the Kottamam road, a TVS
scooter bearing registration No.KL-7/AJ 6206
(scooter), driven by the third respondent in a rash
and negligent manner, hit the appellant. The
appellant sustained serious injuries including
MACA No.1807 of 2011
comminuted fracture with underlining right fd
contusion and brain contusion. He was treated as an
inpatient at the Medical Trust Hospital, Ernakulam
from 12.3.2005 to 24.3.2005. The appellant sustained
a permanent disability. The scooter was owned by the
first respondent and insured with the second
respondent. The appellant claimed a compensation of
Rs.2,06,000/- from the respondents.
3. The respondents 1 and 3 did not contest the
proceeding and were set ex parte.
4. The second respondent had filed a written
statement admitting that the scooter had a valid
insurance coverage. However, the second respondent
contended that the accident occurred due to the
negligence of the appellant. The second respondent
also stated that the compensation claimed was
excessive.
MACA No.1807 of 2011
5. The appellant's next friend was examined as
PW1 and two other Doctors were examined as PWs 2
and 3 and Exts A1 to A10 and X1 were marked
through them in evidence. The second respondent had
produced the insurance policy certificate, which was
marked as Ext B1.
6. The Tribunal, after analysing the pleadings
and materials on record, particularly taking note of the
fact that the appellant had suffered a functional
disability of 25% as per Ext A8, allowed the claim
petition, by permitting the appellant to realise from
the second respondent an amount of Rs.1,45,914/-
with interest and cost.
7. Dissatisfied with the quantum of
compensation awarded by the Tribunal, the petitioner
is in the appeal.
8. Heard: Smt.Rajani K.N, the learned Counsel
appearing for the appellant/petitioner and Sri.Lal
MACA No.1807 of 2011
George, the learned counsel appearing for the second
respondent - insurer.
9. The question that arises for consideration in
the appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just.
10. Ext A4 charge-sheet filed by the Kalady
Police in crime No.139/2005, substantiates that the
accident occurred due to the negligence of the third
respondent. Admittedly, the first respondent was the
owner and the second respondent was the insurer of
the scooter. The respondents have not let in any
contra evidence to discredit the charge sheet. The
second respondent has also not proved that the first
respondent had violated the terms of the insurance
policy conditions. Therefore, the second respondent is
to indemnify the liability of the first respondent arising
out of the accident.
MACA No.1807 of 2011
11. It is proved that the appellant was only 7
years at the time of the accident, as he was born on
29.3.1998. Ext A8 proves that the appellant has
sustained a functional disability of 25%.
12. The Hon'ble Supreme Court in Master
Mallikarjun vs. Divisional Manager, National
Insurance Co Ltd and another [2013 (3) KLJ 815]
has categorically held that in the case of disability of a
minor child who has sustained a disability between 10
and 30 percent to the whole body, an amount of
Rs.3,00,000/- has to be paid as consolidated
compensation, excluding the actual expenditure for
the treatment and attendant charges.
13. Following the ratio in Master Mallikarjun
(supra) and considering the fact the appellant has
suffered a functional disability of 25% and that he was
aged 7 years at the time of the accident, I award the
MACA No.1807 of 2011
appellant a consolidated compensation of
Rs.3,00,000/-, excluding treatment expenditure and
attendant charges.
14. In the present case, the Tribunal has
awarded an amount of Rs.1,000/- towards
transportation expenses, Rs.1,200/- towards bystander
expenses, Rs.10,000/- towards future treatment
expenses and Rs.46,214/- towards the actual medical
expenses totalling to an amount of Rs.58,414/-. I
confirm the finding in this regard, and hold that the
appellant is entitled for reimbursement of the above
amount of Rs.58,414/-.
15. On a comprehensive re-appreciation of the
pleadings, materials on record and the law referred to
in the afore-cited precedents, I hold that the
appellant/petitioner is entitled for enhancement of
compensation, as modified and re-calculated above,
following the ratio in Master Mallikarjun (supra), I
MACA No.1807 of 2011
hold that the appellant is entitled to a total
compensation of Rs.3,58,414/- i.e., Rs.3,00,000/-
towards consolidated compensation and Rs.58,414/-
towards actual expenditure, viz., an enhancement of
Rs.2,12,500/-.
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.2,12,500/- (Rupees Two Lakh Twelve Thousand
Five Hundred only) with interest at the rate of 8%
per annum from the date of claim petition till the date
of deposit and a cost of Rs.5,000/-. The second
respondent-insurer is ordered to deposit the enhanced
compensation amount with interest and costs before
the Tribunal within a period of sixty days from the date
of receipt of a certified copy of the judgment.
Immediately on the compensation amount being
deposited, and taking note of the fact that the
appellant has attained majority, the compensation
MACA No.1807 of 2011
amount shall be disbursed to the appellant, in
accordance with law.
Sd/-
sks/25.11.2021 C.S.DIAS, JUDGE
