IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 991 of 2007()
1. AJAYKUMAR, S/O AYYAPAN PILLAI,
... Petitioner
Vs
1. MR. M.T.BABU, MECKAMALIL HOUSE,
... Respondent
2. ORIENTAL INSURANCE CO. LTD.,
For Petitioner :SRI.V.K.GOPALAKRISHNA PILLAI
For Respondent :SRI.S.MAMMU
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :20/07/2009
O R D E R
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
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M.A.C.A.No.991 of 2007-B
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Dated, this the 20th day of July, 2009
J U D G M E N T
K.M.Joseph, J.
The appellant, while aged 14 years was involved
in an accident. He was driving the bicycle which was hit by a
scooter driven by the 2nd respondent which was insured with
the 3rd respondent. The Tribunal awarded a sum of
Rs.70,470/-. Reducing 25 percent of the total compensation
finding contributory negligence on the part of the appellant,
appellant was awarded Rs.52,852.50. Dissatisfied with the
quantum, the claimant has filed the appeal.
2. We heard learned counsel for the appellant and
learned counsel for the insurance company.
3. Learned counsel for the appellant would
contend that the Tribunal has erred on the ground of
contributory negligence and it should not have been reduced
25 percent. The appellant is a student aged 14 years. Further,
he would contend that the multiplier for computing
MACA No.991/2007 -2-
compensation for disability at Rs.18,000/- is on the lower side.
He referred us the disability in non-fatal accidents in the
Second Schedule to the Motor Vehicles Act and contend that
it should be more. He also contended that the income taken
at Rs.1,250/- as non-earning member should not be applied
for the whole period as he would be earning more money and
it is not a case of death. He pointed out that as per A7
certificate the disability is fixed at 15 percent. But, the
Tribunal has taken 8 percent disability. Per contra, the
learned counsel for the insurance company justified the award.
4. The appellant was only 14 years of age and
was riding the bicycle. No doubt, the Tribunal found that he
was on the wrong side but having regard to the age of the
appellant we feel that apportionment of negligence should be
interfered with and we feel that 15 percent negligence can be
attributed to the appellant. On the said count the appellant
would be entitled to Rs.7,000/- more.
5. We also feel that the appellant can be awarded
a further sum of Rs. 8,500/- under the head loss of amenities
in view of the disability suffered. As far as multiplier is
MACA No.991/2007 -3-
concerned, we are not interfering. It is an application under
Section 166 of the Motor Vehicles Act. The Tribunal has taken
the multiplier as 15. We reject as unsustainable the
contention of the appellant that the income of Rs.1,250/- is
inadequate for the entire period. Once the multiplier is taken
on the basis of the age of the appellant being 14 and not as
earning member we fail to see how the appellant’s request to
take higher multiplier for arriving at compensation can be
granted. Accordingly, the appeal is partly allowed and the
appellant is allowed to realise Rs.15,500/- more with interest
at 7.5 percent from the date of the petition till realisation of
the amount from the second respondent.
(K.M.JOSEPH)
JUDGE.
(M.L.JOSEPH FRANCIS)
JUDGE.
MS