Ignatius Shony v. Thomas Tony and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935** ## **MACA.No. 1214 of 2011 ( )** **-------------------------(AGAINST THE AWARD IN OP(MV)NO. 1098/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 12-08-2009)** **--------------------------------------** ## **APPELLANT/PETITIONER:** **----------------------------------------------** **IGNATIUS SHONY, AGED 34 YEARS, S/O.ANTONY, THOTTUKADAVIL HOUSE, WEST OF C.M.S.BRIDGE,CHERIYAKADAVU, KANNAMALY P.O., COCHIN-8.** **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** ## **RESPONDENT(S)/RESPONDENTS:-** **------------------------------------------------------** **1. THOMAS TONY, S/O. ANTONY, THOTTUKADAVIL HOUSE, CHERIYAKADAVU,** **KANNAMALY.P.O., COCHIN-682 008** **2. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE-II, JEWEL ARCADE, LAYAM ROAD, COCHIN-682 011.** **R2 BY ADV. SMT.A.SREEKALA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ---------------------------------------------------------------------M.A.C.A.No. 1214 of 2011 --------------------------------------------------------------------Dated this the 27[th] day of November, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimant in O.P.(M.V.).No.1098/2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident, caused on account of the rash and negligent driving of the scooter, owned and driven by the first respondent and insured with the 2[nd] respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of the first respondent and also due to the contributory negligence of the petitioner, as he had travelled in the scooter as a pillion rider in a drunken stage and apportioned the negligence between the appellant and the first respondent in the ratio of 20:80 and assessed a total compensation of M.A.C.A.No. 1214 of 2011 2 ₹48,000/- under various heads and directed 80% of the same to be payable to the appellant deducting 20% for his contributory negligence. Further the tribunal came to the conclusion that the pillion rider is not covered under the policy and exonerated the 2[nd] respondent from liability. Dissatisfied with the finding regarding contributory negligence, exoneration of liability of second respondent and the quantum of compensation awarded, the appellant has filed this appeal, before this court to set aside the finding, regarding the contributory negligence, exoneration of insurance company from liability and seeking enhancement of compensation. 2. Since the counsel for insurance company admitted at the time of hearing, that it is a package policy, and their liability is admitted, further, notice to first respondent in the appeal has been dispensed with and we decided to dispose of the appeal at the admission M.A.C.A.No. 1214 of 2011 **==> picture [7 x 9] intentionally omitted <==** stage itself, after hearing the counsel for the insurance company as well. 3. The counsel for the appellant submitted that, since the policy is a package policy, the liability of the insurance company in respect of pillion rider is settled in the decision reported in **(2013 (1) SCC 731) National Insurance Company Lt., v. Balakrishnan and Another** . Further, the tribunal was not justified in coming to the conclusion that the appellant has contributed 20% to the accident, as he was only a pillion rider. It was a case of skidding of the scooter and even assuming that the appellant consumed alcohol and travelled in the vehicle, it cannot be said that he had contributed to the accident and his condition is the cause of accident. So, that fining is liable to be set aside. Further the counsel for the appellant argued that, the appellant was a P.W.D contractor and getting 6,000/-₹ per month. But the tribunal has arbitrarily fixed his M.A.C.A.No. 1214 of 2011 4 monthly income as 3,000/-, which is on the lower side.₹ Further, he suffered severe head injury and the total compensation awarded under various heads is very low, considering the nature of injuries and period of treatment undergone by him. So, according to the counsel for the appellant, the findings of the tribunal regarding contributory negligence and exonerating the insurance company from liability, have to be set aside and he is entitled to enhancement on all heads. 4. On the other hand, the counsel for the insurance company submitted that, in the absence of any evidence adduced on the side of the appellant to prove his disability or other aspects, consequent to the injury, the tribunal was perfectly justified in notionally fixing the income of the appellant as 3,000/- per month and the₹ total compensation awarded is just and proper and no interference is called for at the hands of this court. 5. We have considered the rival contentions M.A.C.A.No. 1214 of 2011 5 of both parties in detail. 6. It is an admitted fact that, the appellant was travelling in the scooter insured with the 2[nd] respondent as a pillion rider. It is also an admitted fact that the policy is a package policy. In the decision reported in Balakrishnan's case(supra), the Supreme Court has held that, the liability of the pillion rider is also covered by package policy. In view of the dictum laid down in the above decision, the finding of the tribunal that, the insurance company is not liable to cover the liability of such person is unsustainable in law and the same is liable to be set aside and we set aside the same and direct the insurance company to pay the amount to the appellant. 7. As regards, the question of negligence is concerned, it is seen from the wound certificate as well as the treatment certificates produced by the appellant that the appellant was brought unconscious and drunk. So in M.A.C.A.No. 1214 of 2011 6 the case of a pillion rider, if he is drunk and unable to maintain himself and not sit properly, then it will cause disturbance to the rider of the vehicle and that may even caused loss of control of the vehicle to the rider and probably that might have caused the skidding of the vehicle and resulting in the accident. So under the circumstances, the finding of the tribunal that the appellant had contributed 20% to the accident is perfectly justifiable and we are not inclined to interfere with that finding. 8. As regards, the income of the appellant is concerned, there is no evidence adduced on the side of the appellant to prove his occupation or income. In the absence of any evidence on the side of the appellant on these aspects, the tribunal has no other option but to fix the monthly income notionally on some guess work. So the tribunal had rightly fixed his monthly income as ₹3,000/- notionally, which cannot be said to be on the M.A.C.A.No. 1214 of 2011 7 lower side, during the year 2004. So we are not inclined to enhance the monthly income fixed by the tribunal as well. 9. It is seen from the treatment certificates produced that he had right temporo parietal acute extradural hematoma, left parietal contusion. C.T. scan also confirms the same. It is seen from the discharge summary produced that he was treated as inpatient from 6.12.2004 to 14.12.2004 and the hospital course and comments reads as follows: “Mr. Igneshius Shony aged 25 years was admitted with history of fall from two-wheeler at near Thoppumpady. Loss of consciousness + No vomiting. CT scan showed evidence of right temporal craniotomy noted with post op changes of diffuse tempero parietal region scalp oedema. Small hyperdense anterior temporal region contusions an left temporal hypodense contusions noted. Right fronto temporo parietal craniotomy and evacuation of acute EDH/GA done on 6.12.2004. Post OP period uneventful. Patient improving. Fofocal deficits”. So it is clear from this, he suffered some head injury and craniotomy was conducted and the haematoma was evacuated. So considering these aspects, he could not have worked at least for 3 months. So we award an 8 M.A.C.A.No. 1214 of 2011 amount of 9,000/- under the head loss of earning₹ instead of 2,000/- awarded by the tribunal. He might₹ have suffered severe pain as well on account of the same. So we are inclined to enhance the amount under the head pain and suffering to 15,000/- from 8,000/- awarded by₹ ₹ the tribunal. Similarly, the tribunal has awarded only ₹ 2,000/- under the head hospitalisation, transportation, and attendant expenses etc. No amount was awarded under the head extra-nourishment. Considering the fact that he suffered severe injuries, the amount of 2,000/-₹ awarded by the tribunal under the head appears to be on the lower side and we enhance the same to 5,000/- from₹ ₹2,000/-. It is true that the appellant has not produced any disability certificate to prove that he suffered any permanent disability on account of the injuries sustained. Considering the fact that, he suffered head injury and craniotomy was conducted to evacuate the haematoma, he may have some discomforts in his life. So, considering M.A.C.A.No. 1214 of 2011 9 theses aspects, an amount of 4,000/- awarded by the₹ tribunal under the head discomfort and inconvenience is on the lower side and we enhance the same to 15,000/-.₹ Though, persuasive arguments were made by the counsel for the appellant to get enhancement under other heads, we are not impressed by the same and we are not inclined to enhance any amount under other heads, as the amount awarded by the tribunal under other heads appears to be just and proper. In all the appellant will be entitled to get an additional compensation of 22,400/-₹ (80% of 28,000/- assessed by this court), over and above₹ what has been awarded by the tribunal, which the 2[nd] respondent insurance company is liable to pay with 9% interest from the date of the claim petition, till date of payment. The 2[nd] respondent insurance company is also liable to pay 80% of amount of 48,000/- assessed by the₹ tribunal to 38,400/- as well, with interest fixed by the₹ tribunal, if not already deposited. Two months time is M.A.C.A.No. 1214 of 2011 10 granted to the insurance company to deposit this amount. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss