IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 MFA.No. 791 of 2001() --------------------- OPMV.529/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: ----------- MINOR JOJU @ JOJO, S/O.FRANCIS, REP. BY HIS GUARDIAN NEXT FRIEND AND FATHER FRANCIS, S/O.CHACKO, PANAKKAL HOUSE, C/O.C.C.VARAPPAN, KUNDANNOOR, VIA, WADAKKANCHERRY, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN SRI.T.VENUGOPALAN RESPONDENTS: ------------- 1. K.K.MUSTHAFA, KARUPPAMVEETTIL HOUSE, VELLARAKKAD. 2. VISHNUKUMAR, S/O.GOVINDAN, KAKKULANGARA VEETTIL, VELLARAKKAD. 3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, THRISSUR. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. No. 791 OF 2001 ------------------------------------------------ Dated this the 10th day of January, 2008 JUDGMENT Koshy, J: A 10 year old boy, while walking along the side of Kunnamkulam- Wadakkanchery road, accompanied by his father, was knocked down by a tempo van from behind. He sustained serious injuries in the accident. He claimed a compensation of Rs.1,12,000/-. The Tribunal has awarded only Rs.40,500/-. Only quantum of compensation is disputed in this appeal. 2. After the accident, the minor boy was taken to Divine Medical Centre, Wadakkanchery as evidenced from Ext.A2 which is the copy of the wound certificate. There was a lacerated wound on the right temperal scalp. Fracture of the skull was detected. There was deformity on the right ankle also. He was referred to West Fort Hospital for expert management. Ext.A6 is the discharge summary which would go to show that he had undergone treatment at the West Fort Hospital till 20.12.1997. Final diagnosis confirmed fracture to the right temperal parietal region of the skull. There was contusion on the right ankle also. Considering the nature of injuries sustained by MFA.791/01] 2 the appellant, the Tribunal granted a sum of Rs.12,000/- as compensation for pain and suffering. Towards loss of amenities, the Tribunal fixed a sum of Rs.12,000/-. The disability certificate issued by the Neuro Surgeon shows that he is having permanent disability of 10%. But the Tribunal did not accept the same as it was not properly proved. In the absence of convincing evidence, the Tribunal awarded Rs.15,000/- on that count on a rough and ready estimate. Considering the age of the boy, we are of the opinion that no interference is required in the above. Thus, the total compensation awarded was Rs.45,000/-. But, the Tribunal deducted 10% on account of contributory negligence on the part of the father of the minor who was accompanying him. The minor was hit from behind. There is no material to hold that child was negligent. We see no ground to reduce the compensation on the ground of contributory negligence. He was hit from behind and the driver of the tempo van was charge- sheeted. Considering the evidence in this case, we are of the view that there is no material to find out 10% contributory negligence on the part of the father of the minor. Therefore, Rs.4500/- ought not have been deducted. We also note that even though medical bills for Rs.1925/- were produced, Rs.2500/- was granted for medical and other incidental expenses like, transportation to hospital, stay at hospital, by-standers expenses, expenses for extra nourishment etc. MFA.791/01] 3 There will be many expenses for treatment not covered by bills. Child needed a bystander for months. We are of the view that for medical expenses, transportation charges, by-standers expenses, extra nourishment etc. another Rs. 3500/- can be granted. Thus, the appellant-claimant is entitled to Rs.8000/- more than what is awarded by the Tribunal. The above Rs.8000/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the Tribunal. On deposit of the amount, the appellant is allowed to withdraw the same. Appeal is partly allowed. Sd/- J.B. KOSHY, JUDGE. Sd/- Krs. K. HEMA, JUDGE. MFA.791/01] 4 J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. No. 791 OF 2001 ------------------------------------------------ 10th day of January, 2008 JUDGMENT