1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.06.2011 CORAM: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI C.M.A(MD)No.581 of 2011 Moorthi, minor, represented by his mother and next friend Veyilachi. ... Appellant(Petitioner) Vs. 1. Saravanan 2. The National Insurance Company, Rose Building, Main Road, Kovilpatti Taluk, Tuticorin District. ... Respondents(Respondents) PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1998 against the award dated 28.07.2009 made in M.C.O.P.No.90 of 2007, on the file of the Motor Accidents Claims Tribunal (Sub-Court), Kovilpatti. For Appellant : M/s.U.Minnavadi For Respondent-2 : M/s.N.Murugesan For Respondent-1 : No appearance JUDGMENT This appeal is filed by the minor claimant, aged 6 years on the date of the accident for enhancement of compensation of Rs.6,250/- awarded by the Tribunal for the injury sustained by him in the accident occurred on 07.09.2001 at 5.40 p.m. at Kadalaiyur Road, due to the rash and negligent riding of the two-wheeler by the first respondent which is insured with the second respondent/insurer. The Tribunal on the basis of the available records, i.e., evidence of P.W.1-mother of the minor claimant, P.W.2-qualified medical practitioner who assessed the disability sustained by the minor claimant, Ex.P2- Accident Register containing the nature of the injuries sustained by the claimant, Ex.P5-permanent disability certificate issued by P.W.2 and Ex.P6-X-ray, fixed the total compensation at Rs.25,000/-, but has awarded Rs.6,250/- by attributing contributory negligence upon the minor injured and by apportioning the liability for the accident between the first respondent and minor at 25:75% respectively. The correctness of such finding in fixing 75% of liability upon the minor claimant for his act of negligence and the quantum of compensation awarded is seriously questioned in this appeal. 2. Regarding the first aspect, the same is in my considered view not factually and legally sustainable considering the age of the minor claimant and the manner in which the accident taken place. This factual position is also fairly conceded by the learned counsel for the second respondent/insurer. Hence the apportionment of liability at 75% on the minor is hence set aside and the sole cause for the accident is attributed to the act of rash and negligence on the first respondent/driver of the vehicle. https://hcservices.ecourts.gov.in/hcservices/ 2 3. Regarding the quantum of compensation, the sum of Rs.25,000/- fixed by the Tribunal is in my considered view reasonable considering the nature and extent of injuries sustained by the injured and the pain and suffering undergone by him due to the same. Though P.W.2-doctor has assessed the physical disability of the injured at 35%, the same is in my considered view not based on any medical evidence and is hence not to be attached any serious reliance. As a matter of fact, P.W.2-doctor during the course of his examination, has only deposed that nature of injury sustained by the minor is grievous in nature but has not further stated as to on what basis 30% disability is assessed without any past history of the nature of treatment undergone by the injured. Further, the mother of the minor claimant as P.W.1 had not deposed about any other disability either partial or permanent sustained by the minor claimant. The evidence available would reveal that the minor claimant has not sustained serious injuries resulting in any permanent disability and the plea of permanent disability is not accepted. 4. Regarding the quantum of compensation, the sum of Rs.25,000/- arrived at by the Tribunal is but just and reasonable and does not call for any interferece. 5. In the result, the award, dated 28.07.2009 made in M.C.O.P.No.90 of 2007, on the file of the Motor Accidents Claims Tribunal(Sub-Court), Kovilpatti is modified by awarding compensation of Rs.25,000/- with interest at 7.5% from the date of claim petition till the date of payment, payable by the second respondent/insurer on behalf of the first respondent/insured, within one month from the date of receipt of a copy of this order. On such deposit of the amount into Court, the same shall be deposited in any one of the nationalised banks in fixed deposit initially for a period of three years till the minor claimant attains majority and the guardian of the minor claimant is permitted to withdraw the accrued interest on such deposit, once in three months, directly from the bank. Excess court fee, if any, shall be refunded to the claimant. The Civil Miscellaneous Appeal is disposed of accordingly. No costs. Sd/- Assistant Registrar (RTI) / True Copy / Sub Assistant Registrar To The Motor Accidents Claims Tribunal, Sub-Judge, Kovilpatti. +1CC TO MS.U.MINNAVADI, ADVOCATE SR : 19370 +1CC TO MR.N.MURUGESAN, ADVOCATE SR : 19401 Vsn SR : 15.11.2011 : 2p/4c C.M.A(MD)NO.581 of 2011 21.06.2011 https://hcservices.ecourts.gov.in/hcservices/