A.K.RADHAKRISHNAN v. P.K.PAVITHRAN and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943 MACA NO. 2668 OF 2009** **AGAINST THE AWARD DATED 08.02.2007 IN OPMV 718/1999 OF THE** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL ,WAYANAD, KALPETTA** ## **APPELLANT/PETITIONER:** A.K.RADHAKRISHNAN, AGED 35 YEARS, S/O.CHATHU, ARCHANAKOLLY, VIMALANAGAR P.O.,, OZHAKODY, MANANTHAVADY TALUK, WAYANAD DISTRICT. BY ADV SRI.N.J.ANTONY ## **RESPONDENTS/RESPONDENTS:** - 1 P.K.PAVITHRAN, AGED 28 YEARS S/O.KUNHIRAMAN, PUTHIYAVEETTIL, OZHAKODY,, MANANTHAVADY TALUK, WAYANAD DISTRICT., (DRIVER OF THE MOTOR CYCLE NO.KL-12A/1493, D.L.NO.1288/93). - 2 P.K.MUHAMMED AGE NOT KNOWN S/O.ABDULLA, PUNNANKANDY HOUSE,, THALAPUZHA, MANANTHAVADY TALUK,, WAYANAD DISTRICT. (OWNER OF THE MOTOR CYCLE, NO.KL-12A/1493). - 3 UNITED INDIA INSURANCE CO.LTD. KALPETTA, (POLICY NO.101601/31/010/11/11120/1999,, FROM 30.6.99 TO 29.6.00). - BY ADV SMT.S.JAYASREE ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** ## **ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2668-2009 -:2:- ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.718/1999 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 05.09.1999. It was his case that, on the above said date, while he was travelling pillion on the motorcycle bearing registration No. KL -12 A/ 1493 from Mananthavady to Thavinhal, ridden by the first respondent, due to the negligence of the first respondent who lost control of the vehicle, the vehicle capsized. As a result of the same, the appellant fell on the ground and sustained fracture of both bones of his leg. He was treated as an inpatient for a period of 18 days at the Medical College Hospital, Kozhikode and the District Hospital Mananthavady. The motorcycle was M.A.C.A.No.2668-2009 -:3:- owned by the second respondent and insured with the third respondent. The appellant was a goldsmith by profession and was earning a monthly income of Rs.6000/-. The appellant became permanently disabled. Hence, the appellant claimed a compensation of Rs.2,00,000/- from the respondents. 3. The respondents 1 and 2 had filed a joint written statement contending that the accident occurred due to the carelessness of the appellant. They also disputed the age, income and occupation of the appellant and the compensation claimed under the different heads. 4. The third respondent had filed a written statement admitting that the motorcycle had a valid insurance coverage. Nevertheless, it was contended that as the appellant was the gratuitous passenger on the motorcycle, for which no additional premium was paid, the third respondent has to be exonerated of its liability. 5. The appellant examined himself as PW1 and M.A.C.A.No.2668-2009 -:4:- marked Exhibits A1 to A9 in evidence. The Disability certificate issued by the Medical Board was marked as Exhibit C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the second respondent an amount of Rs.39,750/- with interest and cost. The third respondent was exonerated of its liability on the ground that the pillion rider was not covered by the insurance policy as no additional premium was paid. 7. Aggrieved by the exoneration of the third respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.N.J.Antony the learned counsel appearing for the appellant/petitioner and Smt.S.Jayasree, the learned counsel appearing for the third respondent/insurer. 9. The points that arise for consideration in the M.A.C.A.No.2668-2009 ## -:5:- appeal are (i) whether the exoneration of the third respondent is sustainable in law ? (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.(i)** 10. The definite case of the appellant was that, while he was travelling pillion on the motorcycle ridden by the first respondent, the vehicle capsized. The respondents 1 and 2 contended that as the motorcycle was insured with the third respondent, the third respondent was to indemnify the liability of the second respondent arising out of the accident. The third respondent contended that since the second respondent had not paid additional premium, the appellant could only be treated as a gratuitous passenger in view of the law laid down in **United India Insurance Company Ltd vs. Thilak Singh** [2006 (2) KLT 884]. 11.The Hon’ble Supreme Court in **National Insurance company v. Balakrishnan and another** M.A.C.A.No.2668-2009 -:6:- [AIR (2013) SC 473], relying on the notification promulgated by the Insurance Regulatory Development Authority, has declared that the insurers of two wheelers covered by a package policy are to indemnify the liability of the insured, in case of injury/death of the pillion riders of two wheelers. 12. In the light of the categoric declaration of law, the third respondent-insurer is to indemnify the liability of the second respondent arising out of the accident. Thus, I set aside the finding of the Tribunal that the third respondent is not liable to indemnify the liability of the second respondent, and hold that the third respondent is to indemnify the liability of the second respondent arising out of the accident. Therefore, the third respondent shall pay the the compensation amount awarded by the Tribunal as well as the enhanced compensation to be determined under question No.(ii). Hence, I answer question No(i) in favour of the appellant. M.A.C.A.No.2668-2009 ## -:7:- ## **Question No(ii)** ## **Income** 13. The appellant had claimed that he was a goldsmith by profession and earning a monthly income of Rs.6000/-. To substantiate his pleading, he produced Exhibit A6 income certificate issued by the Village Officer. 14. The Tribunal for the reason that the appellant was maintaining a family of four members and had not produced any material to prove that he was paying professional tax, fixed the notional monthly income of the appellant at Rs.3000/-. Even without adverting to the above material, in view of catena of decision, I am inclined to fix the notional income of the appellant 15. In **Chameli Devi and others v. Jivrail Mian and others** [(2019) KHC 5352], the Hon’ble Supreme Court has fixed the notional monthly income of a carpenter/skilled worker in the year 2001 at Rs.5000/- 16. Following the yardstick in the afore-cited M.A.C.A.No.2668-2009 ## -:8:- decisions and considering the fact that the accident occurred in the year 1999, I re-fix the notional monthly income of the appellant at Rs.4500/- . ## **Disability** 17. The appellant was referred to a Medical Board, who by Exhibit C-1 has found that the appellant has 5% permanent disability. Exhibit C-1 was accepted by the Tribunal and the appellant’s permanent disability has been fixed at 5%. I confirm the said finding. ## **Multiplier** 18. The appellant was aged 35 years at the time of the accident. The relevant multiplier to be adopted is ‘16’, following the principles laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121]** . ## **Loss due to disability** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.4500/-, his functional M.A.C.A.No.2668-2009 ## -:9:- disability at 5% and the multiplier at 16, I award the appellant an amount of Rs.43,200/- toward ‘loss due to disability’, instead of Rs.28,800/awarded by the Tribunal. ## **Loss of earnings** 20. As per Exhibit A1 to A9, the appellant was under treatment for a period of eight months. Therefore, he was indisposed to carry on his avocation as a goldsmith. In view of the re-fixation of the notional monthly income of the appellant at Rs.4500/-, I award him an amount of Rs.36,000/- towards ‘loss of earnings’. ## **- By stander expenses and extra nourishment** 21. The appellant was treated as an inpatient for a period of 18 days in two hospitals in two spells. The Tribunal has awarded an amount of Rs.1000 under the head ‘by-stander expenses’ and Rs.500/under the head ’extra nourishment’. This, according to me, is on the lower side. 22. Taking into account the fact that accident M.A.C.A.No.2668-2009 ## -:10:- occurred in the year 1999, I award the appellant an amount of Rs.200/- per day for a period of 18 days towards ‘by-stander expenses’, which works out to Rs.3600/- and an amount of Rs.100/- per day for a period of 18 days towards ‘extra nourishment’ which works out to Rs. 1800/-. ## **Pain and sufferings and loss of amenities** 23. The Tribunal has awarded only an amount of Rs.5000/- under the head ‘pain and sufferings’. 24. On a consideration of the fact that the appellant was treated as an inpatient for a period of 18 days, he was indisposed for a period of eight months and that he has suffered a functional disability of 5%, I award him a further amount of Rs.5,000/- under the head ‘pain and suffering’ and Rs. 5000/- under the head ‘loss of amenities’. 25. With respect to the other heads of compensation, I find the same to be reasonable and just compensation. 26. On an overall re-appreciation of the pleadings M.A.C.A.No.2668-2009 -:11:- and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [431 x 398] intentionally omitted <==** **----- Start of picture text -----**<br> Sl.No Head of claim Amount Amounts<br>awarded by the modified<br>Tribunal (in and<br>rupees) recalculated<br>by this<br>Court<br>1 Loss of earnings 3000 36000<br>2 Transportation 700 700<br>expenses<br>3 Damage to 250 250<br>clothing<br>4 Bystander expense 1000 3600<br>5 Extra nourishment 500 1800<br>6 Medical expenses 500 500<br>7 Pain and sufferings 5000 10000<br>8 Loss of amenities 0 5000<br>9 Loss due to 28800 43200<br>disability<br>Total 39750 1,01,050<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.61,300/- with interest at the rate of 6% per annum M.A.C.A.No.2668-2009 -:12:- from the date of petition till the date of deposit, after deducting interest for a period of 872 days i.e. the period of delay in filing the appeal and as ordered by this Court on 28.10.2021 in C.M. Application No.1/2009, and a cost of Rs.5000/-. The third respondent is ordered to deposit the amount awarded by the Tribunal and the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law, if he has not realised the amount from the second respondent till date. In case the second respondent has paid the compensation amount as per the award, the same shall be disbursed to him and only the enhanced compensation shall be paid to the appellant. ## **C.S.DIAS,JUDGE** rmm/10.02.2022