IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 MACA.No. 725 of 2008() ---------------------- OPMV.1181/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANTS/PETITIONERS: ------------------------------------- 1. RENUKA, D/O. SUMATHY, VIJAYA BHAVANAM, NEAR PAZHAYATHU JUNCTION, ULIYAKOVIL CHERRY, KOLLM EAST VILLAGE (RESIDING AT SARATH NIVAS, CLAPPANA P.O., VALLIKKAVU, KARUNAGAPPALLY TALUK). 2. REVATHY, AGED 9 YEARS, D/O. RENUKA, VIJAYA BHAVANAM, NEAR PAZHAYATHU JUNCTION, ULIYAKOVIL CHERRY, KOLLM EAST VILLAGE (RESIDING AT SARATH NIVAS, CLAPPANA P.O., VALLIKKAVU, KARUNAGAPPALLY TALUK). (REP. BY THE 1ST PETITIONER AS THE MOTHER AND GUARDIAN). BY ADV. SRI.V.V.RAJA VIJAYARAGHAVAN SRI.R.RENJITH RESPONDENT(S): RESPONDENTS: --------------------------- 1. ABDUL KAREEM A., S/O. ALIKUNJU, NEELUVEETTIL HOUSE, KUMALATHARA BHAGOM, NEAR PUTHENCHANTHA, NADUVATHU CHERRY, PONMANA, CHAVARA. 2. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, KOLLAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 SRI.C.RAJENDRAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 725 of 2008 ------------------------------------------------------ Dated: FEBRUARY 11, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the minor claimant represented by her guardian mother challenges the award of the Motor Accidents Claims Tribunal, Kollam in OP(MV) 1181/2000 dated June 5, 2007 awarding a compensation of Rs. 23,500/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. The claimant has also challenged the finding of the Tribunal exonerating the 2nd respondent, Insurance Company, from liability. 2. The facts in brief are these: The appellant/claimant is a minor girl aged 9 represented by her guardian mother. On April 30, 1996 at about 5.45 p.m. while the claimant and her mother were walking along the eastern road margin from north to south from Parvathy Mill Junction to Chamakkada, a motorcycle bearing registration No.KEQ/2550 owned and driven by the 1st respondent knocked down the claimant girl who is shown as the 2nd petitioner in the OP causing grievous injuries. The accident occurred due to the rash and negligent riding of the offending motorcycle by the 1st respondent. The 1st respondent as the owner-cum-rider and the 2nd M.A.C.A. 725 of 2008 2 respondent as the insurer of the offending vehicle are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.1 lakh. 3. The 1st respondent, the owner-cum-rider of the offending motorcycle and the 2nd respondent/insurer filed separate written statements alleging negligence on the side of the 1st petitioner in the OP, who is the mother of the injured girl. The 2nd respondent, insurer of the offending vehicle, has also contended that the offending vehicle was not covered by a valid insurance policy at the time of the accident. 4. The 1st claimant, mother of the injured, was examined as PW.1 and Exts.A1 to A9 were marked on the side of the claimant. An officer of the Insurance Company was examined as DW.1 and Ext.B1 was marked on the side of the contesting 3rd respondent. The Tribunal on an appreciation of evidence awarded a compensation of Rs.23,500/- and also found that as the insurance policy in respect of the vehicle was not produced by the claimant, it has to be found that the offending vehicle was not insured with the 2nd respondent, Insurance Company, and exonerated the 2nd respondent from the liability. The claimant has challenged the award of the Tribunal in this appeal. 5. The following questions arise for consideration:- 1. Whether the claimant is entitled to any enhanced M.A.C.A. 725 of 2008 3 comopensation? 2. Whether the offending vehicle was insured with the 2nd respondent Insurance Company by a valid insurance policy at the time of the accident? 6. The accident was not disputed. The finding of the Tribunal that the accident occurred due to negligence on the part of the 1st respondent is also not challenged in this appeal. Therefore the main question for consideration is whether the claimant is entitled to any enhanced compensation. The claimant/injured is a girl aged 9. She sustained a compound comminuted fracture of both bones on left leg. Ext.A7 is the reference card and treatment notes from Sankar's Hospital, Kollam. She was admitted on 30.4.1996 and was discharged on 8.5.1996. Ext.A8 is the treatment certificate which shows that the POP slabs were removed on 26.6.1996. Ext.A9 series are the medical bills. 7. The Tribunal awarded compensation as follows:- transportation Rs.500/- extra nourishment 500 damage to clothing 500 medical expenses 1,200 bystander's expenses 800 M.A.C.A. 725 of 2008 4 pain and suffering 15,000 Loss of amenities 5,000 -------------------- Total 23,500 ============ 8. The Tribunal has awarded only Rs.1200/- towards medical bills which appears to be very low. Taking into account the nature of the injuries sustained by the girl and the period of treatment she has undergone, we feel that an additional compensation of Rs.2500/- would be reasonable on this count. For the loss of amenities/enjoyment of life, Rs.5,000/- was awarded by the Tribunal which, in our view, is very low. The claimant has sustained fracture of both bones of the left leg. Therefore for the loss of amenities/enjoyment of life, an additional compensation of Rs.7,500/- would be reasonable. The Tribunal awarded only Rs.5,000/-. Thus the claimant is entitled to an additional compensation of Rs.10,000/-. 9. In the result, the appellant/petitioner is entitled to an additional compensation of Rs.10,000/-. She is also entitled to interest at the rate of 9% per annum from the date of petition till realisation. For the compensation already awarded also, she is entitled to interest at the rate of 9% per annum. 10. There is another aspect in this matter. The 2nd respondent/Insurance Company was exonerated from the liability by M.A.C.A. 725 of 2008 5 the Tribunal on the ground that the insurance policy of the offending vehicle was not produced. But, when the appeal came up for hearing, learned counsel for the 2nd respondent admitted that the offending vehicle was covered by a valid insurance policy at the time of the accident. That being so, the finding of the Tribunal that the 1st respondent is liable to pay compensation is set aside and it is found that the 2nd respondent, being the insurer, is bound to indemnify the 1st respondent. The 2nd respondent shall deposit the additional compensation awarded within one month from this date before the trial court, with proportionate costs and interest at the rate of 9% per annum. For the compensation already awarded also, she is entitled to interest at the same rate. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-