IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 MACA.No. 1242 of 2006(A) ------------------------ OPMV.697/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT ----------------------- E.K.ABHILASH, S/O.K.KRISHNANKUTTY, MOLATHU PARAMBIL HOUSE, MAMALA P.O., KAKKAD, (VIA) THIRUVANKULAM. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): --------------- 1. H.ABDUL SALAM, S/O.HANEEFA, THUNDIL VADAKKETHIL HOUSE, T.K.M.C. P.O., KARICODE, KOLLAM. 2. OUSEPH JOSEPH, S/O.GEORGE, PUTHIYATHURUTHU VEEDU, FEMINDAD, NEENDAKARA VILLAGE, KARUNAGAPPALLY TALUK. 3. THE NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, ERNAKULAM. 4. SHIBU, S/O.SUPRAN, MOLATH HOUSE, KAKKAD KARA, MAMALA P.O., THIRUVANIYOOR VILLAGE. 5. RAJESH, S/O.AYYAPPAN, ADAMKUNNATH HOUSE, KAKKAD, THIRUVANIYOOR VILLAGE. 6. THE NEW INDIA ASSURANCE CO..LTD., REGIONAL OFFICE, ERNAKULAM. 7. T.K.ABDUL VAHAB, THIRUMALATH HOUSE, COCHIN UNIVERSITY PO, KOCHI-22. ADV. SRI.C.A.CHACKO FOR R7 SRI.A.NANDAKUMAR FOR R4 SMT.A.SREEKALA FOR R.6 SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 1242 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th Day of August, 2009. JUDGMENT K. M. Joseph J. The appellant is the petitioner in a petition filed under Section 166 of the Motor Vehicle Act. He was 18 years old, when he suffered the injuries in a motor accident. He claimed a sum of Rs.4,00,000/- and he was awarded an amount of Rs.1,30,000/- 2. Heard the learned counsel for the appellant and learned counsel for the Insurance Company. 3. The learned counsel for the appellant would contend that the Tribunal has erred in exonerating the 6th respondent Insurance Company. The case of the appellant is that the appellant was travelling in a lorry in his capacity as a supervisor of a quarry and therefore would come within the scope of authorised representative of the owner and in view of the amending Act of 1994, he is entitled to get the compensation from the 6th respondent. Secondly he M.A.C.A . NO: 1242 OF 2006 :2: would contend that the Tribunal has erred in not awarding any amount under disability. Ext. A12 is the disability certificate in which it is stated that the appellant has 25% disability. The medical officer, who issued the certificate, was not examined and the certificate was not proved, in the view of the Tribunal. 5. Learned counsel for the respondent would point out the appellant was only a plus two student which is proved by Ext.B1. She would contend that it is on the basis of the F.I. Statement (Ext.B1) given by the appellant that the criminal proceedings was taken. She supported the award. 6. The first question to be considered is whether the Tribunal was correct in permitting the appellant to recover the amount from the fourth respondent alone. Admittedly there is only an Act policy. If the appellant is a gratuitous passenger in a vehicle in question, in the light of the decision of New India Assurance Co. Ltd. V. Asha Rani & others (2003(2) SCC 223), the appellant may not be entitled to claim from the insurer. The appellant was 18 years of age. Though the appellant contented that he was working as a M.A.C.A . NO: 1242 OF 2006 :3: supervisor in a quary, as correctly found by the Tribunal, the appellant has not produced any evidence in support of his claim. Except his version on examining him, there is no other material to prove the same. The appellant has not shown any record to show that he was employed as a supervisor in a quary. Hence the finding of the Tribunal that the appellant can be treated as a gratitious passenger is only to be confirmed. 7. The further question raised is whether the appellant is entitled for enhanced compensation. The medical certificate issued by the medical board indicated that the appellant has a permanent orthopaedic disability of the whole body, assessed at 25% under mecbrides scheme. The certificate shows that he had the following injuries: “1. Fracture (L) femur upper end 2. Fracture (L) fibula lower end 3. Fracture (R ) tibia and fibula lower end 4. Compartment Syndrome both legs - (L) leg pulsation absent 5. Fracture mandible” M.A.C.A . NO: 1242 OF 2006 :4: 8. The appellant was no doubt a student. But we cannot say that the appellant will not entitled compensation for disability. Therefore, we are inclined to award compensation for disability. We are inclined to take 12% as his disability. Having regard to his age and the possibility of the disability diminishing with the passage of time, and taking Rs.1,500/- as his monthly income, the appellant would be entitled to a compensation of Rs.34,560/-. Accordingly this appeal is allowed in part and the appellant is allowed to realise an amount of Rs.34,560/- along with interest at 7.5% from the date of petition till the date of realisation from the fourth respondent. The amount already awarded by the Tribunal will also bear interest at the rate of 7.5% interest in place of 6% from the date of petition till the date of realisation. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/