Biju T.M. v. E.V. Sunil, Ajeesh K.B. and National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 8[TH] DAY OF DECEMBER 2021 / 17TH AGRAHAYANA, 1943** ## **MACA NO. 1456 OF 2010** **AGAINST THE AWARD DATED 31.12.2009 IN OPMV 1264/2003 OF THE** **ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** BIJU.T.M. AGED 34 YEARS, S/O.MANI, SELVARAJ VIHAR, PAMBOOR, P.O.KUTTOOR, THRISSUR DISTRICT. BY ADV SRI.P.V.CHANDRA MOHAN ## **RESPONDENTS/RESPONDENTS:** - 1 E.V.SUNIL S/O.VASUDEVAN, EDAKKUNNI HOUSE, P.O.VIYYUR, THRISSUR DISTRICT 680 010 - 2 AJEESH K.B. S/O.BALAN K.G. KADAVIL HOUSE, PAMBOOR, KUTTOOR, THRISSUR DISTRICT 680 013. 3 NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, KOLLANNUR DEVASSY, SMARAK BUILDING, ROUND EAST, THRISSUR 680 001. BY ADV SRI.M.A.GEORGE ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1456 OF 2010 2** ## **Dated this the 8[th] day of December, 2021. JUDGMENT** The appellant was the petitioner in OP(MV) 1264/2003 on the file of the Additional Motor Accidents Claims Tribunal, Thrissur. 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,(in short ‘Act’) claiming compensation on account of the injuries that he sustained in an accident on 30.11.2002. It was his case that, on the aforesaid date, while he was travelling as a pillion rider in a scooter bearing registration No. KL 8M 1838 through the Poonkummam - MLA road, due to the negligence of the second respondent, the scooter overturned and the appellant sustained serious injuries. ## **MACA NO. 1456 OF 2010 3** He was treated at the West Fort Hospital as an inpatient for a period of five days. The appellant was a jewellery worker and was earning a monthly income of Rs.8000/-. The scooter was owned by the first respondent and insured with the third respondent. Hence, the appellant claimed a compensation of Rs.1,97,750/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement and an additional written statement, inter alia, contending that the motorcycle was only covered by an ‘Act Policy’. Therefore, the third respondent was not liable to pay the compensation amount. 5. The appellant had produced and marked Exhibits A1 to A11 in evidence. The third respondent produced the insurance policy of the motorcycle, which was marked as Exhibit B1. ## **MACA NO. 1456 OF 2010 4** 6. The Tribunal, after analysing the pleadings and materials on record, exonerated the third respondent and permitted the appellant to realise from the respondents 1 and 2 an amount of Rs.41,550/- with interest at the rate of 7% per annum from the date of petition till the date of realisation. 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.P.V.Chandramohan, the learned counsel appearing for the appellant/petitioner and Smt. Deepa George, the learned counsel appearing for the third respondent/insurer. 9. The questions that arise for consideration in this appeal are (i) whether the exoneration of the third respondent/insurer was sustainable in law ? (ii) whether the quantum of compensation awarded by the Tribunal is ## **MACA NO. 1456 OF 2010 5** reasonable and just? ## **Question No.(i)** 10. Admittedly, the appellant was a pillion rider on a motorcycle, which was covered by Exhibit B1 ‘Act Policy’. 11. In **United India Insurance Company Ltd vs. Thilak Singh and others** [2006 (4) SCC 404], the Honourable Supreme Court has categorically held that the insurer is not liable to indemnify the insured in a claim petition filed for compensation by a pillion rider travelling on a two wheeler covered by an ‘Act Policy’. The said legal position is reiterated by the Honourable Supreme Court in **National Insurance Co. Ltd. v. Balakrishnan and another** [AIR (2013) SC 473]. 12. In view of the above authoritative precedents and the fact that Exhibit B1 is an ‘Act Policy’, and that the appellant was a pillion rider on the motorcycle, I do not find any error or illegality in the conclusion arrived at by the Tribunal exonerating the third respondent-insurer ## **MACA NO. 1456 OF 2010 6** from indemnifying the first respondent to pay the compensation amount. Hence, I answer question No.(i) against the appellant. ## **Question No.(ii)** 13. The appellant had claimed that the was a jewellery worker by profession and earning a monthly income of Rs.8000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2500/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional monthly income of a coolie worker in the year 2004, at Rs.4500/- per month. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2002, I re-fix the notional monthly income of the appellant at Rs.3500/-. ## **MACA NO. 1456 OF 2010 7** ## **Loss of earnings** 16. The Tribunal has found that the appellant was indisposed for a period of three months, which finding I do confirm. 17. In view of the re-fixation of the notional monthly income of the appellant at Rs.3500/-, I hold that he is entitled for enhancement of compensation under the head ‘loss of earning’ by a further amount of Rs.3000/-i.e. total amount of Rs.10,500/-. ## **Disability** 18. The appellant had produced Exhibit A8 disability certificate issued by the Neurologist attached to the Thrissur Heart Hospital. The Doctor, who issued the certificate has stated that the appellant had giddiness, watering of eyes and had a scar. Hence, the appellant has a permanent partial disability of 12%. 19. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has held that what ## **MACA NO. 1456 OF 2010 8** needs to be looked into in a injury claim for compensation is the functional disability of the injured -claimant. 20. In the instant case, going by Exhibit A8 disability certificate is found that the Doctor has stated that the appellant has only a permanent partial disability of 12%. Moreover, the reasons for the permanent partial disability are only giddiness, watering of the eyes and a scar on his face. The said reasons cannot be considered to hold the appellant has any functional disability. I am not convinced that the appellant was prevented from carrying on his avocation. Therefore, I uphold the finding of the Tribunal that the appellant has no functional disability. ## **Pain and sufferings** 21. In the light of the nature of injuries sustained by the appellant, that he was treated as an inpatient for a period of five days and that he was indisposed for a period of three months, I hold that the appellant is entitled to Rs. 20,000/- for ‘pain and sufferings’ as claimed in the ## **MACA NO. 1456 OF 2010 9** claim petition, i.e an enhancement of Rs.8,000/-. 22. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, I uphold the finding of the Tribunal with regard to exoneration of the liability of the third respondent, but direct the respondents 1 and 2 to pay the appellant a further amount of Rs.11,000/- (ie. Rs.8000/- towards compensation for ‘pain and suffering’s, and Rs.3000/towards ‘loss of earnings’) with interest at the rate of 7% per annum, from the date of petition till the date of realisation, and a cost of Rs.5000/-. The respondents 1 and 2 are ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. If the said amount is not deposited by the respondents 1 and 2, within the prescribed time period, **MACA NO. 1456 OF 2010 10** the appellant would be at liberty to move the Tribunal for executing this judgment to realise the above ordered compensation, which shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm08/12/2021