Biju S. v. Thomas, Joseph J. Kallarackal House, Cheppukulam P.O., United India Insurance Co. Ltd.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939 MACA.No. 496 of 2006 ------------------------AGAINST THE AWARD IN OPMV 597/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA DATED 06-11-2004 APPELLANT/PETITIONER: --------------------------------- BIJU.S., S/O.K.RAVEENDRAN NAIR,, RESIDING AT D.92, INCOME TAX QUARTERS, PANAMPILLY NAGAR, KOCHI-36. BY ADVS.SRI.VIJU ABRAHAM SRI.BENOY K.KADAVAN SRI.JOY C. PAUL RESPONDENT(S): -------------- 1. THOMAS, S/O.AUGUSTINE, KAKKATTUPALLIYIL,, KURYANADU.P.O, KOTTAYAM DISTRICT,, NOW WORKING AT CHOLOPLAST, P.B.NO.1,, KOOVAPADY, PERUMBAVOOR, ERNAKULAM DISTRICT. 2. JOSEPH.J.KALLARACKAL HOUSE, CHEPPUKULAM.P.O, THODUPUZHA. 3. UNITED INDIA INSURANCE CO.LTD., THODUPUZHA. BY ADV. SRI.A.R.GEORGE BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 0504-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - M.A.C.A. 496 of 2006 - - - - - - - - - - - - - - - - Dated : 5[th] April, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** Ramachandra Menon, J. 1.The appeal is for enhancement of compensation awarded by the Tribunal in respect of injuries sustained by the appellant, pursuant to the road traffic accident occurred on 30.1.2001. 2.The factual position revealed from the proceedings is that, the appellant along with others was travelling in a Maruthi car bearing No.KRZ 8118 and when it reached Nadathara at Thrissur, the car hit against a stationery lorry driven, owned and insured by respondents 1 to 3 before the Tribunal, causing serious injuries to the passengers in the ca. This led to the claim petition filed by the appellant before the Tribunal, seeking to compensate the loss. The other injured had also filed a claim petition before the Tribunal as OP(MV) No.598/2001. The **MACA.496/06** 2 Tribunal heard both the claim petitions together and passed a common Award. - 3.The matter was contested mainly by the 3[rd] respondent/Insurer. Though, they admitted the insurance coverage to the Maruthi car, negligence on the part of the 1[st] respondent/driver was disputed. It was contended that passengers of the car were not covered by the 'Act policy' issued by them. - 4.The documents produced by the appellant were marked as Exts.A1 to A17 and the document produced by the respondent Insurance Company was marked as Ext.B1. - 5.Based on the relevant materials on record, the Tribunal arrived at a finding that the accident had occurred due to the negligence on the part of the driver of the Maruthi car and proceeded to fix the compensation accordingly. - 6.Referring to the serious consequences resulted **MACA.496/06** **==> picture [7 x 9] intentionally omitted <==** because of the injuries sustained, a total sum of Rs.2,50,000/- was claimed by the appellant. Awarding amounts under different heads, total compensation was fixed by the Tribunal as Rs.1,02,901/-, which was directed to be satisfied with interest at 7% per annum from the date of petition. The liability was mulcted upon the shoulders of the 3[rd] respondent Insurance Company. Inadequacy of compensation awarded by the Tribunal is the subject matter of challenge in this appeal. - 7.Heard the learned counsel for the appellant and also the learned counsel appearing for the 3[rd] respondent Insurance Company. - 8.The injuries sustained by the appellant, noted in paragraph 8 of the Award, read thus: “fracture of shaft of left humerus, fracture of ribs left side, fracture of scapula left side and fracture of clavicle left side. **MACA.496/06** 4 - 9.The amounts awarded by the Tribunal under different heads as given in paragraph 8 of the Award are as follows : Loss of earning : ₹ 1,000/Transport to hospital : ₹ 400/Damage to clothing : ₹ 250/Extra nourishment : ₹ 750/Bystander's expenses : ₹ 1,500/Treatment expenses : ₹ 53,401/Pain and suffering : ₹ 15,000/Permanent disability : ₹ 30,600/---------------Total : 1,02,901/- **₹** ========= 10.The learned counsel for the appellant points out that the appellant has suffered multiple fractures, having sustained fracture to the left humerus, left clavicle, left ribs (5 in number) and left scapula, resulting in hospitalisation for a total of 15 days. The disability of the appellant certified by the Medical Board as 15%, as noted in Ext.A10, despite which only 10% was reckoned by the Tribunal for fixing compensation for permanent disability. It is also pointed out that, the notional income was fixed as Rs.2,000/-,but in the calculation portion, it came to be reckoned only as Rs.1,500/-. **MACA.496/06** 5 11.The learned counsel for the appellant submits that the salary of the appellant, who was working as a Sales Officer, was sought to be established by producing Ext.A11 certificate, wherein the certified salary was shown as Rs.5,450/. True, the appellant did not produce any evidence to substantiate the occupation or income by examining anybody who had issued the certificate, nor did he choose to mount the box, so as to substantiate his version. However, this by itself does not deter this Court from reckoning an appropriate extent as the probable monthly salary, especially in the case of a person who was an able bodied youth of 30 years. We find it appropriate to reckon the notional monthly income as Rs.3000/- considering the date of accident and the economic condition prevailing on the said date. The 'loss of earning' requires to be compensated by an extent of 3000 x 6 = 18,000/-. Only an amount of Rs.1,000/- has been awarded by the Tribunal. After deducting the amount awarded by the Tribunal, the balance compensation payable **MACA.496/06** 6 under this head comes to Rs.17,000/-. - 12.The disability of the petitioner is assessed at 15% as per the disability certificate, despite which only 10% was reckoned by the Tribunal for fixing permanent disability; which requires to be fixed as 15%. Considering the fact that the appellant had crossed the age of 30 years, the appropriate multiplier is '16'. Thus the total compensation payable to the petitioner under the head 'permanent disability', becomes 3000 x 12 x 15/100 x 16 = 86400/-. After deducting Rs.30,600/- already awarded by the Tribunal, the balance comes to Rs.55,800/- (86,400-30,600). - 13.The Tribunal has awarded only a sum of Rs.15,000/- towards 'pain and suffering'. In view of the multiple fractures and the ordeal undergone, we find it appropriate to award a further sum of Rs.10,000/- under this head. - 14.For 'loss of amenities and enjoyment in life' no amount has been given. We find it appropriate to **MACA.496/06** **==> picture [7 x 9] intentionally omitted <==** award a sum of Rs.15000/- under the said head. Thus the total balance compensation payable comes to Rs.97,800/(Ninety seven thousand eight hundred) which shall be satisfied with interest at the rate of 9% per annum from the date of petition filed before the Tribunal, till realization. 15.Coming to the liability to satisfy the additional compensation; it is brought to the notice of this Court that the policy issued, a copy of which is produced before this Court as Ext.B1, was only an 'Act Policy'. The Tribunal has observed in paragraph 7 of the Award that it is the settled law that the gratuitous passengers of private vehicle are covered by 'Act Only Policy'. We find it extremely difficult to accept the said view. It is fundamentally wrong and no insurance coverage is there for the gratuitous passengers travelling in private vehicle under 'Act only policy'. Unless and until the policy issued is a package policy or standard package policy, the coverage will not extend in respect ## **MACA.496/06** 8 of such passengers. We have gone through the contents of Ext.B1 policy as well; the Lower Court records having been procured before this Court. It is seen that the policy issued by the respondent/Company was an 'Act only policy' in respect of the Maruti Car bearing No.KRZ 8118. This being the position, by virtue of the law declared by the Supreme Court in United India Insurance Company Ltd. v. Tilak Singh and Others (2006 (4) SCC 404) and also by this Court at different points of time, the liability could not have been mulcted upon the respondent/Insurance Company. - 16.Fact remains that Insurance Company has not challenged the said Award by filing any appeal and as such, the matter has become final and the liability to satisfy the amount awarded by the Tribunal is not liable to be interfered with by this Court. The question is only with regard to the enhancement of the compensation awarded by this Court. ## **MACA.496/06** 9 17.Merely for the reason that the Tribunal has wrongly held that gratuitous passenger is covered under an 'Act only policy' and that the licensee Company has not challenged the same, it will not make the law in favour of the claimants, if policy is actually an 'Act only policy'. In view of the declaration of law as above and since Ext.B1 is an 'Act only policy', this Court finds that the additional compensation awarded by this Court cannot be shifted to the shoulders of the Insurance Company under Ext.B1 policy. Reason for not challenging the Award may be due to various circumstances. Since we have found that the claimants are entitled to get adequate compensation and further since the liability towards additional compensation cannot be shifted to the shoulders of the Insurance Company, the said amount has to be satisfied by the respondents 1 & 2, ie, Driver and Owner of the car. - 18.Initially the appeal was filed with a petition to condone the delay of 38 days in filing the **MACA.496/06** 10 appeal. Though service was complete, the above respondents did not choose to appear before this court. After condoning the delay, the matter came up for admission on 4.3.2016, when the appeal was admitted and this Court found it fit and proper to issue notice to the respondents 1 & 2 once again. Despite the completion of service of notice, they have not chosen to appear before this Court. In such circumstances, the additional compensation shall be satisfied by the respondents 1 and 2. It is open for the appellant to pursue further steps to get the due amount recovered from the respondents 1 & 2 as done. The appeal stands allowed to the said extent. No costs. ## **P.R.RAMACHANDRA MENON Judge** ## **Sd/-** ## **A.M.BABU Judge** Mrcs/6.4 //True copy// P.S to Judge