IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 MACA.No. 208 of 2009() ---------------------- OPMV.547/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): PETITIONER ------------------------ BILAL, AGED 10 YEARS (MINOR), REPRESENTED BY FAQTHER AND NEXT FRIEND, SUBAIR, 44 YEARS, S/O. MARAKKAR, PANDI HOUSE, P.O. KADALUNDI, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER SMT.P.JAYALAKSHMI RESPONDENT(S): RESPONDENTS -------------------------- 1. P.K. AURNGHOSH, S/O KRISHNAN, POTHUMKUZHIKKATTIL HOUSE, VALLIKKUNNU.P.O, ANANGADI. 2. JAYARAJAN.K, S/O. AYYAPPAN, KIZHEPAATU HOUSE, KADALUNDI NAGARAM.P.O, MALAPPURAM DISTRICT. 3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, C.K.H BUILDINGS, THAZHEPALAM, TIRUR - 676 101. ADV. SRI.S.ARUN RAJ FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------------------- M.A.C.A. NO. 208 OF 2009 ------------------------------------------ Dated this the 1st day of October, 2009. JUDGMENT This is an appeal preferred against the award of the Motor Accident Claims Tribunal, Tirur in OP(MV) 547 of 2006. The claimant is a minor boy aged 8 years sustained injuries in a road accident and the tribunal awarded a compensation of Rs.14,900/-. It also found that the claimant has contributed 25% the accident and further exonerated the insurance company from the liability on account of the fact there was no evidence to prove the existence of a valid driving licence. 2. Heard the counsel for both sides. Let me first consider about the contributory negligence. Admittedly the boy was aged 8 years at the time of the accident. It is the case that the boy was familiar with the driver of the jeep. The boy attempted get into the jeep and it is averred that the driver moved the jeep in a rash and negligent manner resulting in injuries to the boy. It has to be stated that a child aged 8 years is not always able to understand the consequences of the actions and therefore, the law is well settled under such circumstances it may not be appropriate to hold M.A.C.A. NO. 208 OF 2009 2 that such children are negligent. It is certain that the boy was proceeding to get into the jeep. In the process of before getting into the jeep the vehicle was moved. Driver should have taken extra-ordinary care anticipating that the child may commit some careless act. Therefore, I find that the contributory negligence aspect has to be set aside and I find the driver alone is responsible for the accident. 3. So far as the quantum of the compensation is concerned the boy has sustained a fracture of the tibia and fibula and treated as in-patient from 24.3.2006 and thereafter also plaster cast was applied and it would have taken a reasonable time to get back to his normal life. The child at the age of 8 years is always smart and wants to play and would have certainly lost the company of the children of the same age and therefore should have suffered on account of the same and there would have been difficulty for him also in walking for some time and I feel this is a fit case were an amount of Rs.5,000/- has to be granted towards loss of amenities and enjoyment of life. Therefore total compensation would be Rs. 20,000/- and no deduction is to be made. 4. Lastly, I consider relating to the question of policy. The learned counsel for the appellant had produced before me for perusal a copy of M.A.C.A. NO. 208 OF 2009 3 the policy which is not very legible as to the vehicle No. etc. But if the said policy relates to the vehicles then said policy is valid from 18.3.2006 to 17.3.2007 and as the accident had taken place on 24.3.2006 there will be a valid coverage for the vehicle. As stated by me particulars are not very clear and on the basis of the same a decision cannot be taken. Therefore, I give an opportunity to the claimant to produce a legible copy of the policy or at least give the policy number to the counsel appearing for the insurance company before the lower court so that they can trace out submit before the tribunal regarding existence or non existence of the policy as case may be. For the purpose alone, I remit the case back with a direction to the tribunal to permit both the parties to adduce evidence in support of the contention regarding validity of the insurance and coverage of the insurance and dispose of the matter in accordance with law. Parties are directed to appear before the tribunal on 20.11.2009. M.N.KRISHNAN,JUDGE pm