Aliyamma George v. George and The United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** **MACA NO. 2238 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 155/2007 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,KOTTAYAM, KOTTAYAM** ## **APPELLANT/PETITIONER:** ALIYAMMA GEORGE, W/O.GEORGE CHELLANNIYIL HOUSE,PUTTUMANUR KARA, NEW RESIDING, AT MEVALLOOR DESOM, VELLOOR VILLAGE,VAIKOM TALUK. BY ADV SRI.T.K.KOSHY ## **RESPONDENTS/RESPONDENTS 1 & 2:** 1 GEORGE, S/O.ABRAHAM,CHELLANNIYKL (H),PUTTUMANUR KARA, PUTTUMANUR KARA,PUTHENCRUZ VILLAGE - 682 308. 2 THE UNITED INDIA INSURANCE CO.LTD. THRIPUNITHURA 682 301. BY ADV SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2238 OF 2010** **2** ## JUDGMENT The appellant was the petitioner in O.P(MV) No.155/2007 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents before the Tribunal. 2. The concise facts in the claim petition, relevant for the determination of the appeal, are: on 24.04.2006 while the appellant was riding as a pillion on a motorcycle bearing Reg.No.KL-7P/7480 driven by the 1[st] respondent and while they were travelling along the Thripunithura-Karimukal road, when the vehicle reached Ambalamukal, the motorcycle attempted to overtake an autorickshaw. The appellant's left leg got entangled in the wheel of the motorcycle causing her serious injuries. The 5[th] toe of the appellant had to be amputated and she also sustained injuries on her 3[rd] **MACA NO. 2238 OF 2010** **3** and 4[th] toes of her left leg and a crush injury on her left foot. She was treated as an inpatient at the Vijayakumara Menon Hospital from 24.4.2006 to 3.5.2006 i.e, for a period of 10 days. The appellant was a home maker and earning a notional income of Rs.4,500/- per month. The motorcycle was owned by the 1[st] respondent and insured with the 2[nd] respondent. Hence, the appellant claimed a compensation of Rs.1,36,500/- from the respondents, but limited it to Rs.1,00,000/-. 3. The 1[st] respondent did not contest the proceedings and was set ex parte. 4. The 2[nd ] respondent filed a written statement, inter alia, contending that the appellant was a gratuitous passenger travelling on the motorcycle. Hence the 2[nd] respondent was not liable to cover a gratuitous passenger as per conditions in the insurance policy. The compensation claimed under the different **MACA NO. 2238 OF 2010** **4** heads were excessive and exorbitant. Hence, the claim petition may be dismissed. 5. The appellant produced and marked Exts.A1to A6 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, dismissed the claim petition on the ground that as the 1[st] respondent being the husband of the appellant, the appellant was not entitled to get any compensation. 7. Aggrieved by the impugned award passed by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 2[nd] respondent/Insurance Company. 9. The questions that emerge for consideration in this appeal are: (i) Whether the finding of the Tribunal, that because the the rider of the motor cycle was the **MACA NO. 2238 OF 2010** **5** husband of the appellant, she was dis-entitled for compensation, was justifiable or not ? (ii) What is the reasonable and just compensation payable to the appellant? 10. Ext.A4 charge-sheet filed by the City Traffic Police Station, Kochi in Crime No.2155/2006 substantiates that the accident occurred on account of the negligence on the part of the 1[st] respondent, who drove the in a manner. motorcycle negligent the was covered a Admittedly, motorcycle by package/comprehensive policy. 11. In **Sajad Saheer v. Rajeev [** 2017 (3) KLT SN 35 (Case. No.45)], this Court has held that contributory negligence cannot be attributed on the pillion rider of the vehicle, who was no role in riding/driving the vehicle. 12. Merely because the 1[st] respondent was the husband of the appellant, the appellant cannot be **MACA NO. 2238 OF 2010** **6** disentitled to claim compensation. The said finding of the Tribunal is erroneous and unsustainable in law. 13. Moreover, the Police after investigation have categorically found as per Ext.A4 chargesheet that, it was the 1[st] respondent who was negligent in causing the accident. In light of Ext.A4 charge-sheet and the settled law that the person accused of negligence has to prove negligence on the part of the rider of the motorcycle, I hold that the appellant is entitled for claiming compensation on account of the negligence of the 1[st] respondent . Undisputedly, the motorcycle was covered by a Package/Comprehensive policy. 14. Although the law at the time of passing the award was that a pillion rider was not covered by a package policy, in view of the categoric declaration of law in **National Insurance Ltd. v. Company Balakrishnan and others [AIR (2013) SC 473]** wherein it has been held that a pillion rider is entitled **7** ## **MACA NO. 2238 OF 2010** for compensation, if the vehicle is covered by a comprehensive policy. Hence, I answer Question No.1 in favour of the appellant and hold that the 2[nd] respondent is liable to indemnify the 1[st] respondent of his liability to pay compensation to the appellant. 15. Now coming to the question of reasonable and just compensation. 16. The appellant had claimed that she was a home maker and earning a monthly income of Rs.4,500/-. The Tribunal though dismissed the claim petition, in order to fix the compensation payable as laid down by this Court, fixed the probable amount that would have to be paid, if the claim petition was allowed. Accordingly, the Tribunal fixed the notional income of the appellant at Rs.3,000/- per month. ## **Notional income** 17 **. In Rajendra Singh v. National Insurance** **Co. Ltd. [** 2020 (4) KLT 6 (SC)] , the Hon'ble Supreme **MACA NO. 2238 OF 2010** **8** Court has fixed the notional income of a wife at Rs.5,000/- per month. 18. Taking into consideration the above ratio and the fact that the appellant had claimed an amount of Rs.4,500/- per month, I re-fix the notional income of the appellant at Rs.4,500/- as claimed for in the claim petition. ## **s Loss of earning** 19. As per Ext.A5 wound certificate, it is proved that the appellant had sustained a crush injury on her left leg and also had to amputate her 5[th] toe and also sustained injuries on her 3[rd] and 4[th] toes. She was treated as an inpatient for a period of 10 days and her left was put in plaster cast for more than one month. In the said circumstances, I hold that the appellant was incapacitated for a period of five months. In view of the re-fixation of the notional income of the appellant at Rs.4,500/- and the period of incapacity fixed at five **MACA NO. 2238 OF 2010** **9** months, I hold that the appellant is entitled for 'loss of earning' at Rs.22,500/-. ## **Bystander expenses** 20. It is proved that the appellant was hospitalised for a period of ten days. Considering that the accident occurred in the year 2006, I re-fix the by-stander expenses at Rs.2,00/- per day for a period of ten days, ie. a total amount of Rs.2,000/- under the head 'bystander expenses'. ## **Pain and suffering** 21. The appellant had claimed an amount of Rs.30,000/- under the head 'pain and suffering'. It is proved by Ext.A5 that the appellant had a crush injury on her left foot, her 5[th] toe had to be amputated and she had also sustained injuries on her 3[rd] and 4[th] toes. She was treated as an inpatient for a period of 10 days , her leg was put in plaster cast for a period of more than one month and was incapacitated for a period of five **MACA NO. 2238 OF 2010** ## **10** months. In view of the said factors, I re-fix the compensation under the head 'pain and suffering' at Rs.20,000/-. ## **Loss of amenities** 22. The appellant had claimed an amount of Rs.20,000/- as loss of amenities. Taking into consideration the factors mentioned under the head 'pain and suffering', I hold that the appellant is entitled for compensation under the head 'loss of amenities' as claimed for in the claim petition at Rs.20,000/-.. ## **Other heads of claim** 23. With respect to the other heads of compensation, namely, Transport to hospital, Extranourishment, Damage to clothing and Medical expenses, I find that the probable amount fixed by the Tribunal at Rs.1,000, Rs.500, and Rs.10,610/respectively to be just and reasonable. 24. Even though the appellant had claimed **MACA NO. 2238 OF 2010** **11** compensation for permanent disability, the appellant had not produced the disability certificate or got her disability assessed by a Medical Board as per the mandate in **Raj Kumar v. Ajay kumar** [2011 (1) KLT 620 (SC)]. Therefore, I hold that the appellant is not entitled for any compensation under the said head. 25. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellant is entitled for compensation as recalculated above and given in the table below for easy reference. |SI<br>.No|Head of claim|Probable amount<br>fixed by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|6,000|22,500| |2.|Transport to hospital|1,000|1,000| |3.|Clothing|500|500| **MACA NO. 2238 OF 2010** **12** |4.|Bystander expenses|1,000|2,000| |---|---|---|---| |5.|Extra nourishment|500|5,00| |6.|Medical expenses|10,610|10,610| |7.|Pain and suffering|20,000|20,000| |8.|Loss of amenities|5,000|20,000| ||Total|36,610<br>======|77,110<br>======| In the result, the appeal is allowed, in part, by fixing the compensation at Rs.77,110/- . The 2[nd] respondent is directed to pay the compensation amount with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting the interest for a period of 76 days, i.e, the period of delay in preferring the appeal and as ordered by this Court on 30.3.2021 in C.M.Appli. No.2908/2010, and proportionate costs. The 2[nd] respondent shall deposit the compensation awarded in the appeal before the **MACA NO. 2238 OF 2010** **13** Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The disbursement of the compensation to the appellant/petitioner shall be done by the Tribunal, in accordance with law. ma/14.7.2021 Sd/- **C.S.DIAS, JUDGE**