Benoy Kurian v. Jiby Joseph and ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 2ND DAY OF AUGUST 2017/11TH SRAVANA, 1939 MACA.No. 1495 of 2008 ( ) -------------------------AGAINST THE AWARD IN OP(M.V)308/2004 of M.A.C.T, MUVATTUPUZHA DATED 27-03-2008 APPELLANT/PETITIONER: -------------------------- BENOY KURIAN, S/O KURIAN, RESIDING AT KOCHUPARAMBIL, VADATTUPARA KARA, KUTTAMPUZHA VILLAGE. BY ADV. SMT.ANEY PAUL RESPONDENTS: ---------------- 1. JIBY JOSEPH, S/O JOSEPH ORAVLAKUDY HOUSE, KEERAMPARA VILLAGE, PUNNEKKADU, KOTHAMANGALAM. 2. REJIMON, S/O ANTONY, LANKARATHUPARAMBIL HOUSE, VDATTUPARAKARA, KUTTAMPUZHA VILLAGE. 3. THE BRANCH MANAGER, THE UNITED INSURANCE CO. LTD., JOS TRUST BUILDING, P.B.NO.3644, CHITTOR ROAD, KOCHI-6820. R3 BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR) R3 BY SRI.JOHN JOSEPH VETTIKKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------M.A.C.A.No.1495 of 2008 -------------------------------Dated 2[nd] August, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal for enhancement of quantum of compensation is filed by the injured petitioner. The Motor Accidents Claims Tribunal, Muvattupuzha as per the judgment and award in O.P.(M.V)No.308 of 2004 dated 27.3.2008 awarded an amount of ₹1,59,910/as compensation with interest at the rate of 8.5% per annum from the date of petition till realisation. The appellant filed the said claim petition under Section 166 of the Motor Vehicles Act seeking a total compensation of 4,00,000/- for the injuries sustained by him in a₹ motor vehicle accident that occurred on 18.12.2003. On that day, he was travelling as a pillion rider on the motor cycle bearing Reg.No.KL17-1152, ridden by the second respondent. The first respondent was its owner and the third respondent was its insurer, at the relevant point of time. During the course of journey, the second respondent lost the control of the vehicle and it capsized. The appellant sustained severe injuries and he remained as an inpatient for a period of 40 days. The injuries sustained by him resulted in permanent disability. It is in the M.A.C.A.No.1495 of 2008 2 said circumstances that the above mentioned claim petition was filed and the Tribunal granted compensation as aforesaid. As per the impugned judgment, the Tribunal exonerated the third respondent insurance company from the liability to indemnify the first respondent, the insured owner of the vehicle on the ground that Ext.B1 policy pertaining to the offending vehicle is a package policy and therefore, the risk of the pillion rider is not covered thereunder. In short, consequently, the appellant was directed to pay costs to the third respondent and the amount awarded was directed to be paid jointly and severally by respondents 1 and 2. ## 2. Heard. 3. The judgment and award passed by the Tribunal is challenged on various grounds. Firstly, it is contended by the learned counsel for the appellant that the Tribunal went wrong in exonerating the third respondent, insurer of the offending vehicle and thereby absolving the third respondent from compensating the appellant in indemnification of the insured owner of the offending vehicle. That apart, it is contended that the Tribunal was not at all justified in making the appellant to pay costs to the insurer on the ground that the offending vehicle was then covered only by a package policy and therefore, it would not cover the risk of the pillion rider. In order to M.A.C.A.No.1495 of 2008 3 drive home the said contentions the learned counsel relied on the decision of the Hon'ble Apex Court in **National Insurance Company Ltd.** v. **Balakrishnan and Anr.** ( **AIR 2013 SC 473** ). In the said decision, the Apex Court held that an Act Policy is distinct and different from comprehensive/package policy. It was further held therein that in such circumstances, an occupant in a car or a pillion rider on a motor cycle would stand covered under a package policy. Evidently, the Apex Court held thus, taking into account the circular issued by the Insurance Regulatory and Development Authority (IRDA) dated 16.11.2009. 4. Paragraph 10 of the impugned judgment would reveal that the third respondent disowned the liability to indemnify the insured owner of the offending vehicle contending that the policy in question is a package policy and that it did not collect any premium to cover the risk of the pillion rider. In the light of the aforesaid circular dated 16.11.2009 as also the decision of the Hon'ble Apex Court in **Balakrishnan's** case (supra) it can only be held that the Tribunal went wrong in exonerating the third respondent insurance company from the liability to indemnify the insured owner of the vehicle viz., the first respondent. In pursuance of the said finding and its necessary impact, the respondents are jointly and severally liable to compensate the appellant/petitioner. Since there was valid insurance coverage for the M.A.C.A.No.1495 of 2008 4 vehicle involved in the accident the third respondent is liable to indemnify the first respondent, the insured owner of the said vehicle. Consequently, the direction of the Tribunal to pay costs to the insurance company, is also liable to be vacated. Accordingly, it is set aside. 5. We will now proceed to consider whether the appellant is entitled to get enhanced compensation. The main grievance of the appellant is that the Tribunal erroneously fixed the monthly income disregarding the averments of the appellant in the claim petition in relation to his occupation and income. In the claim petition, it is averred that he was then working as a Counter Staff in Hotel Ceaser Palace, Kottayam and was earning 5,000/- per month. In a bid to₹ establish the said contention the appellant/claimant produced Ext.A11 salary certificate issued from the said Hotel. However, it is a fact that the said document was not proved before the Tribunal. The employer of the appellant/claimant was not examined and the appellant has also not chosen to enter the box. In that circumstance, it can only be said that the appellant/claimant has failed to establish his occupation and income. When that be so, it could not be held that the Tribunal had committed an error in fixing the monthly income notionally. But, then the question is whether fixation of the monthly income as 2,000/-₹ warrants interference. In that regard, the facts that the accident had M.A.C.A.No.1495 of 2008 5 occurred on 18.12.2003 and the appellant/claimant was then aged only 31 years are to be taken into account. Even in the absence of evidence regarding the occupation and income, for the purpose of fixing the monthly income for calculation purpose, taking into account the aforesaid factors, the decision of the Apex Court in _**Ramachandrappa**_ _**v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ can be looked into for guidance. The accident involved in the said decision occurred in the year 2004 and in respect of a coolie who met with an accident the Apex Court fixed the monthly income as 4,500/-, for calculation purpose. Since the₹ accident had occurred in this case on 18.12.2003, we are of the considered view that 4,500/- can be fixed as the monthly income of₹ the appellant for calculation purpose. The multiplier was correctly adopted by the Tribunal as `16' with reference to the age of the appellant/claimant at the time of the accident. The Tribunal fixed the extent of disability for calculation purpose accepting its certification in Ext.B1 as 14%. In such circumstances, re-assessment of the compensation for permanent disability is required only by substituting the re-fixed monthly income. On such re-assessment, the amount payable under the said head would be ₹1,20,960/(4,500x12x16x14/100). The Tribunal has already granted an amount M.A.C.A.No.1495 of 2008 6 of 53,760/-. After deducting the said amount, the appellant is entitled₹ to get an additional compensation of 67,200/- under that head. ₹ 6. The Tribunal has fixed the period of loss of earning as four months. We do not find any reason to interfere with the said fixation. However, based on the re-fixation of the monthly income, the appellant is entitled to get a proportionate enhancement under that head as well. The Tribunal has granted an amount of 8,000/- at the₹ rate of 2,000/- per month. Based on the re-fixed monthly income, for₹ the same period, the amount payable will be 18,000/-. Consequently,₹ he will be entitled to get 10,000/- additionally under that head. The₹ appellant had been an inpatient for a period of 40 days. The Tribunal has granted only 3,750/- towards bystander's expenses. Taking into₹ account the year of the accident, price index and the cost of living at that relevant point of time, we are of the view that an amount of 150/-₹ per day ought to have been granted towards bystander's expenses. Taking into account the period of hospitalization bystander's expenses at the aforesaid rate would be 6,000/-. Hence, the appellant would be₹ entitled to an amount of 2,250/- additionally towards bystander's₹ expenses. Towards extra nourishment, the Tribunal has granted only an amount of 1,000/-. Taking into account the same factors viz., the₹ year of the accident, the price index and the cost of living at the M.A.C.A.No.1495 of 2008 7 relevant point of time, we are of the view that the rate ought to have been 100/- per day. Consequently, the appellant would be entitled to₹ get 3,000/- additionally under that head. Towards loss of amenities,₹ the Tribunal has granted an amount of 12,000/-. Ext.A6 wound₹ certificate and Ext.A8 treatment certificate would reveal that the appellant had sustained the following injuries:- “Abrasions on the face, forehead, chest, right shoulder, abdomen, left forearm, left hand, left knee, lacerations on upper and lower lips, on the forehead, on right elbow, right knee, compound dislocation of right elbow with injury to right brachialatery and fractures of 5[th] -8[th] ribs left side. CT scan showed fractures of frontal sinus, right maxilla, pneumocephalus and right basifrontal haemorrhagic contusions.” Taking into account the period of treatment, the nature of the injuries and the treatment underwent we are of the view that an amount of ₹13,000/- can be granted additionally towards loss of amenities. Accordingly, it is granted. Taking into account the nature of injuries as revealed from paragraph 11 of the impugned judgment, we are inclined to grant an amount of 5,000/- additionally towards compensation for₹ pain and sufferings. 7. In the light of the re-assessment of compensation under the aforesaid heads, the appellant is entitled to get an additional compensation of 1,00,450/-. It is awarded. The third respondent is₹ M.A.C.A.No.1495 of 2008 8 directed to deposit the said amount with interest at the rate of 8% per annum from the date of petition till realisation, within a period of two months from the date of receipt of a copy of this judgment. The appeal is disposed of accordingly. There will be no order as to costs. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **ANIL K. NARENDRAN Judge** TKS // true copy // P.S. To Judge