Kerala High Court
The Secretary, Gulf Ideal ... vs Ajith John on 24 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
MACA NO. 2395 OF 2015
AGAINST THE AWARD IN OPMV 851/2010 OF ADDITIONAL DISTRICT AND
SESSIONS COURT IV/ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II,
THODUPUZHA
APPELLANT/2ND RESPONDENT:
THE SECRETARY,
GULF IDEAL INTERNATIONAL AND CHARITABLE TRUST
KODIKULAM P.O., THODUPUZHA,
IDUKKI DISTRICT.
BY ADV SRI.UNNIKRISHNAN.V.ALAPATT
RESPONDENTS/PETITIONER/RESPONDENTS 1 AND 3 TO 6:
1 AJITH JOHN
AGED 7 YEARS, MINOR, S/O.JOHN,
REP: BY HIS FATHER AND NATURAL GUARDIAN JOHN,
VADAKKEDATH HOUSE, AGED 48,
MULAPPURAM KARA,
NEYYASSERY VILLAGE,
THODUPUZHA 685 584.
2 MUHAMMED RAFFI
S/O.IBRAHIM, VANIYAPPURAYIL HOUSE,
PLANTATION BHAGAM,
VANNAPPURAM KARA,
THODUPUZHA 685 584.
3 RELIANCE GENERAL INSURANCE COMPANY LTD
REP; BY ITS BRANCH MANAGER, XL/3599, 4TH FLOOR,
ELIZABETH ALEXANDER MEMORIAL BUILDING, MARINE DRIVE,
COCHIN 682 031.
M.A.C.A.No. 2395 of 2015 2
4 MANU VARGHESE
PARACKALPURAYIDAATHIL HOUSE,
MULAPPURAM, KARIMANNOOR P.O.,
THODUPUZHA 685 584.
5 VINOJ GEORGE
KUNNUMPURATH HOUSE,
UPPUKUNNU P.O., THODUPUZHA 685 584.
6 THE ORIENTAL INSURANCE COMPANY LTD.,
REP. BY ITS BRANCH MANAGER,
THODUPUZHA BRANCH 685584.
BY ADVS.
SMT.JENCY MICHEAL, FOR R1
SRI.K.C.JOY, FOR R6
SRI.LAWRENCE DCUNHA, FOR R6
SRI.MATHEW JACOB KUNNATHU, FOR R6
SRI.MATHEW BONSTANE, FOR R6
SRI.K.MADHUSOODANAN, FOR R6
SRI.T.G.PAUL, FOR R6
SRI.K.B.RAMANAND, FOR R3
SRI.SOJAN MICHEAL, FOR R1
SMT.K.S.SHANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.09.2021, THE COURT ON 24.09.2021 DELIVERED
THE FOLLOWING:
M.A.C.A.No. 2395 of 2015 3
T.R.RAVI, J.
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M.A.C.A.No. 2395 of 2015
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Dated this the 24th day of September, 2021
JUDGMENT
The only question that arises in this appeal, which has been filed
by the owner of the offending vehicle in a motor vehicle accident, is
whether the Tribunal was right in awarding compensation under the
heads pain and suffering and loss of amenities and conveniences,
while working out the compensation following the decision of the
Hon'ble Supreme Court in Master Mallikarjun vs. Divisional
Manager, The National Insurance Co.Ltd. & Anr. reported in
[(2014) 14 SCC 396].
2. A minor child aged 7 years was travelling in an
autorickshaw on 6.10.2010. A mini bus driven by the 2 nd respondent
collided against the autorikshaw, injuring the child. The appellant is
the owner of the mini bus. Admittedly, the bus did not have a valid
insurance at the time of the accident and it also did not have a fitness
certificate. The Tribunal found that the insurer is not liable and
awarded a sum of Rs.4,80,840/- with interest at the rate of 9% per
annum from 31.12.2010, which was directed to be paid by the
appellant and the 2nd respondent. The appellant has filed this appeal
challenging the quantum of compensation awarded.
3. Heard the learned counsel for the appellant and the
respondents.
4. The fixing of liability on the appellant is not disputed. The
only question to be considered is whether compensation can be
granted under the heads pain and suffering and loss of amenities. In
Mallikarjun(Supra) the Hon'ble Supreme Court evolved a method
for granting compensation in case of injury suffered by children,
causing them permanent disability. In paragraph 8 of the judgment, it
was held that appropriate compensation for disability should take care
of all the non-pecuniary damages like pain and suffering, physical
shock, laws of amenities, inconvenience, hardship, discomfort,
disappointment, frustration, etc., and apart from that head, there
should only be the claim for actual expenditure for treatment,
attendant, transportation, etc. It was further held that in case of
children who suffer disability between 10% and 30% to the whole
body, a sum of Rs.3 lakhs should be awarded for non-pecuniary
damages. Hence, if the Tribunal is following the principles laid down in
Mallikarjun(Supra), compensation ought to have been granted for
non-pecuniary damages only at the rate specified in the judgment
and no amount ought to have been granted under the heads pain and
suffering and loss of amenities. I find considerable force on the
contention of the appellant. The counsel for the respondents fairly
submitted that the judgment in Mallikarjun (Supra) does not allow
compensation under the different heads for non-pecuniary damages.
5. In the above circumstances, this appeal is allowed and the
amount of Rs.75,000/- granted towards pain and suffering and
Rs.50,000/- granted towards loss of amenities are deducted from the
total amount of compensation awarded by the Tribunal. The award of
the Tribunal stands modified permitting the 1 st respondent to realise a
sum of Rs.3,55,840/- (Rupees Three Lakhs Fifty Five Thousand
Eight Hundred and Forty only) with interest at the rate of 9% from
the date of the petition to the date of realisation with proportionate
cost from the appellant and the 2 nd respondent. The appellant shall
deposit the entire amount awarded after deducting the amounts
which have been deposited as directed by this Court at the time of
admission of this appeal, within two months from the date of receipt
of a certified copy of the judgment. The disbursement of the amounts
deposited by the Tribunal will be in accordance with law.
Sd/- Sd/-
T.R.RAVI
JUDGE
dsn
