IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 MACA.No. 170 of 2009() ------------------------------- OPMV.1578/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................................... APPELLANT(S): PETITIONER ------------------------ SHYMA (MINOR),AGED 14 YRS,D/O.MAJITHA, SHYMA MANZIL,MANGADU VILLAGE,CHATHANAMKULAM CHERRY,MULLAVILLAVADAKKATHIL,CHANDANATHOPPE, KOLLAM. REP; BY HER MOTHER AND GUARDIAN SMT.MAJITHA,AGED 42 YRS D/O.ARIFA BEEVI, SHYMA MANZIL,MANGADU VILLAGE, CHATHANAMKULAM CHERRY,CHANDANATHOPPE,KOLLAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): RESPONDENTS -------------------------- 1. MR.RAVEENDRAN PILLAI,S/O.RAMACHANDRAN PILLAI,KALLELIL KIZHAKKATHIL VEEDU,CHARUKADA CHERRY,PANAYAM VILLAGE,PERINADU.P.O,KOLLAM. 2. THE BRANCH MANAGER,NATIONAL INSURANCE COMPANY LTD,PARAMESWARAN PILLAI BHAVAN,HOSPITAL ROAD,KOLLAM,P.B.NO.157,PIN-691001. ADV. SRI.JOE KALLIATH FOR R2 SRI.HARISANKAR V. MENON FOR R1 SMT.MEERA V.MENON FOR R1 SRI.MAHESH V.MENON FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. M.N. KRISHNAN, J ------------------------------- M.A.C.A.No.170 OF 2009 --------------------------------------- Dated this the 23rd day of February, 2010 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal Kollam in O.P. (M.V).1578/02. The claimant who sustained injuries in a road accident is a minor girl and the claims Tribunal had dismissed the application on the ground that negligence is not proved. The Tribunal pointed out that there was a delay in lodging the FIR by two days and therefore one cannot hold that everything is in order. The court also commended upon the place of accident and also the scene mahazar. At the outset I may like to point out that the person involved in the accident is a minor girl aged seven years at the time of the accident. It has been repeatedly held by various courts that when a child of about seven years gets involved in an accident one cannot attribute contributory negligence on the child for the reason that the child is incapable of understanding the consequences of its action. The child who goes to the school by road would be more interested in seeing the various things in and around her and just like elderly men could not normally MACA No.170/09 2 realise the consequences. That is why the courts have held that contributory negligence could never be attributed to a minor child who is aged about seven years of age. Since the accident is admitted and the police after due investigation filed charge sheet before the court, the involvement of the vehicle and the riding of the motor cycle by the first respondent stand established and therefore I hold that the first respondent is and negligent liable for the accident. 2. Now turning to the quantum, the young girl was admitted at Upasana hospital, Kollam ad a perusal of the documents would reveal that she had a deformity and limitation of movement of the right shoulder coupled with a fracture on the right clavicle. She was admitted as an inpatient for ten days and it is on this basis compensation has to be calculated. I proceed to determine the compensation as follows: Since the claimant was in the hospital for 10 days she is granted Rs.1,000/- as bystanders expense, towards medical expense I grant a sum of Rs.1,000/- towards nutritious food, damage to cloth and transportation etc. I award a further sum of Rs.1,000/-. Since the child has sustained dislocation and MACA No.170/09 3 fracture of the clavicle, I grant Rs.8,000/- towards pain and suffering. Certainly on account of the accident child would not have been in a position to play or enjoy. There would be loss of amenities for which I grant Rs.5,000/-. Therefore, the claimant will be entitled to a compensation of Rs.16,000/-. 3. In the result, MACA is allowed. The order dismissing the application is set aside. The claimant is awarded a compensation of Rs.16,000/- with 7.5 % interest on the said sum from the date of petition till realisation and the Insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. M.N. KRISHNAN, JUDGE sou.