High Court of KeralaSingle Judge2022-02-24Appeal allowed in part

K. Sadanandan v. Abdullah K. and Oriental Insurance Co. Ltd. and E. Mohammed

Case / Petition Number:MACA NO.134 OF 2009

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2022-02-24
Court Decision / Holding: The appeal is allowed in part. The court held the policy was an Act Policy not covering gratuitous passengers; the second respondent (owner) is liable to pay the compensation. Notional monthly income was fixed at Rs. 4,000. Loss of earnings increased to Rs. 8,000; pain and suffering Rs. 15,000; loss of amenities Rs. 10,000. Total enhanced compensation Rs. 37,238. The enhanced amount is Rs. 21,988, with interest at 7% per annum from the petition date to deposit, and costs of Rs. 5,000. Deposit before Tribunal within 60 days; failure enables execution.
Final Disposition: Appeal allowed in part

Parties to the Case

Appellants / Petitioners

K. Sadanandan

Respondents

Abdullah K.
E. Mohammed
Oriental Insurance Co. Ltd

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Vidyasagar

Counsels for Respondents

• Sri Babu S. Nair
• M. Shaiju Purushothaman
• Titus Mani
• Sri K. Rakesh
• K.S. Rajesh

Case Synopsis & Summary

K. Sadanandan filed a motor accident claim under Section 166 of the Motor Vehicles Act, 1988 for injuries suffered when a lorry overturned on 24 February 2003. The Motor Accidents Claims Tribunal, Manjeri, partly allowed the petition, directing the second respondent (the lorry owner) to pay Rs. 15,250 with costs, while holding the insurer unconstrained by policy terms. The insurer contested on the basis that the policy was an “Act Policy” with no premium to cover passengers, thus the claimant—who was a loading/unloading worker traveling as a passenger—was not insured. Exhibits A1–A4 and X1 were produced by the appellant; Exhibit B1 was the insurer’s policy. On appeal, the Kerala High Court held that the insurance policy covered only Act Policy passengers and that the insurer was not liable to indemnify the owner; the owner remained vicariously liable. Relying on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (2011) 13 SCC 236, the court re-fixated the notional income at Rs. 4,000 per month for the year 2003. It increased losses on several heads (loss of earnings to Rs. 8,000; pain and suffering to Rs. 15,000; loss of amenities to Rs. 10,000) and left other heads intact, resulting in a total enhanced award of Rs. 37,238. The appeal was allowed in part, with enhanced compensation of Rs. 21,988, plus interest at 7% p.a. and costs, to be deposited within 60 days.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal under-compensated him for injuries, hospitalisation, and disability; it erred by applying a lower notional income and by limiting heads of compensation. He asserts that he was a loading/unloading worker whose earnings and exposure warranted a higher quantum, and that the insurer should be liable for compensation since the accident involved a vehicle he was travelling in. Exhibits A1–A4 and X1 support his case; he argues the policy does cover passenger claims in practice, and the notional income should reflect 2003 standards in light of Ramachandrappa, which the High Court later adopts for recalculation of income.

Contentions of Respondents

The respondents argue that the policy with the insurer is an Act Policy and contains no premium for passenger coverage; therefore the insurer is not liable to indemnify the owner for passenger injuries. Liability lies with the owner, and the Tribunal’s quantum should be governed by policy terms and precedents without extending coverage beyond the Act Policy. They contend the Tribunal’s award was within reason, and the appellate court should respect the insurer’s non-liability for passenger claims, while allowing potential adjustment of damages within statutory limits.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[(2011) 13 SCC 236]	Positive	Court relies on Ramachandrappa to fix notional income for the claimant, applying a precedential standard for wage assessment in similar contexts.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943** ## **MACA NO. 134 OF 2009** **AGAINST THE AWARD DATED 12.08.2008 IN OPMV 871/2004 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/CLAIMANT:** K.SADANANDAN, S/O KARI KUNDUKULAM HOUSE, TRIPPANACHI PO,KUZHIMANNA VIA, MALAPPURAM DISTRICT. BY ADV SRI.K.VIDYASAGAR ## **RESPONDENTS/RESPONDENTS:** 1 ABDULLAH K., KURIKKAL HOUSE ANAKKAYAM PO, MANJERI, (DRIVER) 2 E.MOHAMMED ERANHIYIL HOUSE PANDIKKAD PO.(OWNER) 3 ORIENTAL INSURANCE CO.LTD BRANCH OFFICE, JASEELA COMPLEX.MANJERI., BY ADVS. SRI.BABU S. NAIR M.SHAJU PURUSHOTHAMAN TITUS MANI SRI.K.RAKESH K.S.RAJESH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO.134 OF 2009 2** ## **JUDGMENT** **Dated this the 24[th] day of February, 2022** The appellant was the petitioner in O.P (MV) No.871/2004 on the file of the Motor Accidents Claims Tribunal, Manjeri. 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, claiming compensation on account of the injuries sustained to him in an accident on 24.02.2003. It was his case that, on the above said date, while he was travelling in a lorry bearing registration No. KRD 9839 from Poonklappadi to Manjeri, the lorry overturned causing injuries to him. The appellant was treated as an inpatient for a period of 12 days at the Medical College Hospital, Kozhikode. The appellant was a loading and unloading worker and earning a monthly income of Rs.6000/-. The lorry was owned by the second respondent and insured with the ## **MACA NO.134 OF 2009 3** third respondent. Hence, the appellant claimed a compensation of Rs.1,82,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding. 4. The third respondent had filed a written statement admitting that the lorry was covered by an insurance policy. Nevertheless, it was contended that the insurance policy was only an ‘Act Policy’ and no additional premium was paid. Therefore, the appellant being a loading worker, was only gratuitous passenger and not covered by the insurance policy. 5. The petitioner had produced and marked Exhibits A1 to A4 series in evidence. The disability certificate was marked as Exhibit X1. The third respondent had produced the insurance policy which was marked as Exhibits B1. 6. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, ## **MACA NO.134 OF 2009 4** by permitting the appellant to recover from the second respondent an amount of Rs.15,250/-, with interest and cost of Rs.500/-. - 7.Dissatisfied with the quantum of compensation - awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.K.Vidyasagar, the learned counsel appearing for the appellant/petitioner and Sri. Babu S. Nair, the learned counsel appearing for the first respondent and Sri. Titus Mani Vettom, the learned counsel appearing for the third respondent-insurer. 9. The point that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exhibit A1 FIR and Exhibit A2 wound certificate proves that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the owner of the lorry. The third ## **MACA NO.134 OF 2009 5** respondent - the insurer of the lorry – has established that Exhibit B1 insurance policy was only an ‘Act Policy’, for which no additional premium was paid to cover passengers in the lorry. Therefore, the finding of the Tribunal that the third respondent was not liable to indemnify the second respondent is correct and in accordance with law. Hence, I uphold the finding that it is the second respondent who is vicariously liable to pay the compensation amount. ## **Income** 11. The appellant had claimed that he was a loading and unloading worker and earning a monthly income of Rs.6000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2500/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has ## **MACA NO.134 OF 2009 6** fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2003, I re-fix the notional monthly income of the appellant at Rs.4000/-. ## **Loss of earnings** 14. The Tribunal has found that the appellant was indisposed for a period of two months. I confirm the said finding. 15. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award him an amount of Rs.8,000/- towards ‘loss of earnings’, instead of Rs.5,000/- awarded by the Tribunal. ## **Disability** 16. Even though the appellant had sustained a head injury, contusion of his frontal lobe, fracture of the facial bone and lateral wall of the maxilla zeugmatic arch **MACA NO.134 OF 2009 7** but in the Exhibit X1 disability certificate the appellant’s disability is nil. Hence, the Tribunal found that he had not suffered any disability. I confirm the said finding. **Pain and sufferings and Loss of amenities** 17. The Tribunal has awarded an amount of Rs.6,000/- towards the head ‘pain and sufferings’, but has not awarded any amount under the head ‘loss of amenities’. 18. On a consideration of the fact that the appellant was treated as an inpatient for a period of 12 days, that he was indisposed for a period of two months and that he had suffered three fractures, I award him a further amount of Rs.9,000/- under the head ‘pain and suffering and Rs.10,000/- under the head‘ loss of amenities’ 19. With respect to the other heads of compensation, I find the Tribunal has awarded reasonable and just compensation. ## **MACA NO.134 OF 2009 8** 20. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |Sl No.|Head of Claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Loss of earnings|5000|8000| |2|Transport to the hospital|500|500| |3|Damage to Clothing|250|250| |4|Extra nourishment|1200|1200| |5|Review expenses|300|300| |6|Medical expenses|1988|1988| |7|Pain and sufferings|6000|15000| |8|Loss of amenities|0|10000| ## **MACA NO.134 OF 2009 9** ||Total|15238 rounded off to Rs.15250/-|37238|| |---|---|---|---|---| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.21988/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The second respondent is ordered to deposit the enhanced compensation with interest and cost as ordered above before the Tribunal within sixty days from today. If the compensation amount is not deposited, the appellant would be at liberty to move the Tribunal for execution of this judgment, and on the compensation amount being realised, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/24/02/2022