Jobin Joseph v. Rijo G. and The Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 30[TH] DAY OF JUNE 2021 / 9TH ASHADHA, 1943** **MACA NO. 1393 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1344/2003 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE,** **APPELLANT/S:** JOBIN JOSEPH, S/O JOSEPH, AGED 28 YEARS RESIDING AT ADHIKARATHIL HOUSE, P.O.ADUKKAM,, KOTTAYAM. BY ADV SMT.LATHA PRABHAKARAN ## **RESPONDENT/S:** 1 RIJO.G. RESIDING AT ADHIKARATHIL, P.O.KOOMBARAM, BAZAAR, KOODARANHI, KOZHIKODE. 2 THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE, SREENIDHI BUILDING,, NARAYANA NAGAR, VADAKARA. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1393 of 2009 ## **C.S DIAS,J.** **--------------------------MACA No.1393 of 2009 ----------------------------Dated this the 30[th] day of June, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1344/2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents in the claim petition. 2. The appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him on 23.4.2003, while he was riding pillion on a motor cycle bearing registration No.KL-11/M 5784 from Koodaranhi to Koombara. It was his case that due to the exorbitant speed and negligent driving of the motor cycle by the rider, the vehicle skidded and he fell down. The appellant sustained 3 MACA No.1393 of 2009 serious injuries and was treated at Lisa Hospital, Thiruvambadi and, thereafter, at Baby Memorial Hospital, Kozhikode. He sustained a depressed fracture nasal bone, fracture frontal sinus and multiple injuries all over his body. He was treated as an inpatient from the date of accident till 22.5.2003 at two different hospitals. The appellant was an Instrumentation Technician and earning a monthly income of Rs.6,000/-. The accident occurred solely due to the negligence on the part of the rider of the motor cycle, which was owned by the first respondent and insured with the second respondent. Hence, the appellant claimed a compensation of Rs.3,63,000/-, but limited the claim to Rs.3,00,000/-. 3. The first respondent did not contest the proceedings and was set ex parte. 4. The second respondent filed a written statement admitting that the motor cycle had a valid insurance policy. 4 MACA No.1393 of 2009 However, it was contended that the rider of the motor cycle did not possess a valid driving licence and that the accident alleged in the claim petition was concocted. 5. The appellant marked Exts A1 to A4 and the second respondent produced Ext B1 Insurance Policy in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award dismissed the claim petition on the cardinal grounds that the appellant had suppressed the material fact regarding the age and father's name of the first respondent and that as per Ext B1 package policy a pillion rider was not covered. Nevertheless, the Tribunal had passed an interim award, under Sec.140 of the Act, directing the second respondent to pay the appellant interim compensation of Rs.25,000/-. 7. Aggrieved by the impugned award passed by the Tribunal, the petitioner is in appeal. 5 MACA No.1393 of 2009 8. Heard the learned counsel appearing for the appellant /petitioner and the learned counsel appearing for the second respondent – Insurance Company. 9. The questions that emerge for consideration in the appeal is: (i) whether the impugned award passed by the Tribunal is sustainable in law, and (ii) whether the appellant is entitled for any amount as compensation. 10. The Tribunal rejected the claim petition for the reason that the appellant had not furnished the father's name of the first respondent in the cause title. It was observed that the appellant and the first respondent were residing in Kottayam and Kozhikode Districts, but their house names were the same, namely, 'Adhikarathil House' . Surprisingly, the Tribunal found that the alleged collusion raised by the second respondent had no legal consequences, but the bonafide of the petition is 'collapsed' (sic). 6 MACA No.1393 of 2009 11. The Tribunal further held that even though Ext B1 was a comprehensive policy, as the owner had not paid any additional premium, the second respondent was not liable to cover the risk of the pillion rider. Nonetheless, as the second respondent had not challenged the interim order passed under Sec.142 of the Act, the Tribunal held that the second respondent was not entitled to claim refund of the amount already paid. 12. Dealing with the second ground of rejection first, the finding of the Tribunal that no additional premium was paid to cover the liability of a pillion rider is no longer resintegra in view of the law laid down by the Hon'ble Supreme Court in **National Insurance Company Ltd vs Balakrishnan and Ors [AIR 2013 SC 473]** , wherein it is held that in a package policy, the pillion rider is also covered by the policy. Therefore, I hold that the appellant was covered by Ext B1 Insurance Policy issued by the 7 MACA No.1393 of 2009 second respondent and, therefore, the second respondent is liable to indemnify the insured of his liability. 13. The learned counsel appearing for the appellant argued that the non-suiting of the appellant for nonfurnishing the father's name of the first respondent was erroneous and unsustainable in law. 14. Undisputedly, the appellant had produced Ext A1 copy of FIR, wherein the details of the driver was provided. Despite the Tribunal finding that the alleged nonfurnishing of the details had no legal consequences, the Tribunal dismissed the claim petition. This according to me is clearly erroneous and perverse. It is no one's case that the non-furnishing of the details of the father of the first respondent amounts to collusion between the appellant and the first respondent. Thus, I set aside the finding of the Tribunal and hold that the first respondent, the owner of the vehicle is vicariously liable to pay 8 MACA No.1393 of 2009 compensation to the appellant, which has to be indemnified by the second respondent who is the insurer. Therefore the first question is answered in favour of the appellant. 15. In view of question No.(i) being answered in favour of the appellant, I go on to decide the just compensation payable to the appellant. 16. The appellant had claimed that he was an Instrumentation Technician by profession and earning a monthly income of Rs.6,000/-. However, no material was produced to substantiate his claim. Therefore, we will have relied on the decision of the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** wherein notional income of a coolie worker has been fixed in the year 2004 at Rs.4,500/- per month. Considering the fact that the accident occurred in the year 2003, I fix the notional income of the appellant at 9 MACA No.1393 of 2009 Rs.4,000/- per month. 17. The appellant had produced Ext A2 discharge certificate and Ext A3 discharge summary issued by the Baby Memorial Hospital, which shows that the appellant had undergone inpatient treatment for a period of 23 days. He had suffered three fractures in the accident. Thus, I hold that the appellant was incapacitated for a period of two months. In view of the refixation of the notional income of the appellant at Rs.4,000/-, I hold that the appellant is entitled for compensation under the head loss of earnings for a period of two months, i.e., an amount of **Rs.8000** /-. 18. Taking into account that the appellant had sustained fractures and was treated as an inpatient for a period of 23 days and was incapacitated for a period of two months, I hold that he is entitled for compensation under the heads 'pain and sufferings' and 'loss of amenities' at **Rs.10,000/-** each, totalling to **Rs.20,000/-.** 10 MACA No.1393 of 2009 19. With respect to the compensation under the heads transport to hospital and extra nourishment, I hold that a reasonable amount of Rs.1,000/- each can be awarded. 20. As the appellant had not produced any bills for his medical treatment and that he has not proved that he suffered any disability, I hold that the appellant is not entitled for compensation under the heads 'loss of disability' and 'medical expenses'. In the result, I allow the appeal by permitting the appellant to realise an amount of **Rs.30,000/-** from the second respondent as compensation with interest @ 6% per annum from the date of petition till the date of realisation, after deducting a period of 128 days, that is a period of delay in preferring this appeal as ordered by this Court on 12.3.2021 in C.M Appln 1593/2009 and proportionate costs. The amount of Rs.25,000/- awarded as 11 MACA No.1393 of 2009 interim compensation shall also be deducted from the total compensation payable. The second respondent shall deposit the compensation amount with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. The Tribunal shall disburse the compensation amount to the appellant, in accordance with law. Sd/- SKS/30.6.2021 **C.S.DIAS JUDGE**