Lilly v. Sunny Mathew and The United India Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 12TH DAY OF MARCH, 2014/21ST PHALGUNA, 1935 MACA.No. 684 of 2014 ------------------------ AGAINST THE AWARD IN OPMV 593/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,THRISSUR DATED 05-11-2013 APPELLANT/PETITIONER: LILLY, AGED 44 YEARS W/O.SUNNY, ELAVUMTHARIPPIL HOUSE, KANNARA P.O. PEECHI, THRISSUR DISTRICT-680652. BY ADVS.SRI.C.HARIKUMAR SMT.C.B.ANUROOPA RESPONDENTS/RESPONDENTS: ## 1. SUNNY MATHEW, S/O.MATHEW, ELAVUMTHARIPPIL HOUSE, KANNARA P.O. PEECHI, THRISSUR DISTRICT-680652. ## 2. THE UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, PARK HOUSE, ROUND NORTH THRISSUR-680001. R1 BY ADV. SRI.V.V.SADANANDAN (SREEMOOLANAGARAM) R2 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = M.A.C.A. No. 684 of 2014 = = = = = = = = = = = = = = = = = = = Dated this the 12[th] day of March, 2014 ## JUDGMENT The appellant has sustained injuries in a motor accident that occurred on 2.10.2005 involving a motor cycle driven and owned by her husband and insured with the second respondent. She was a pillion rider on that motor cycle. She has filed an application before the Motor Accidents Claims Tribunal, Thrissur, claiming compensation on account of the injuries sustained in the accident. The learned Tribunal, after considering the matter, found that the accident had occurred due to the negligence on the part of the first respondent, driver of the motor cycle, and awarded a compensation of Rs.7,000/- with interest at the rate of 7.5% from the date of filing of the petition till realisation. The second respondent Insurance Company was MACA 684/2014 2 directed to pay the amount to the petitioner. They were also permitted to recover the said amount so paid from the first respondent as there was overloading on the vehicle at the time of accident. Dissatisfied with the quantum of compensation awarded by the Tribunal and challenging the permission granted to the second respondent to recover the amount from the first respondent on the ground of overloading on the vehicle, the appellant has preferred this appeal. Learned counsel for the appellant did not press the challenge made in this appeal against the permission granted to the Insurance Company to recover the award amount from the first respondent at the time of hearing and pressed only the claim for enhancing the compensation. 2. Heard the learned counsel appearing for the appellant, learned counsel appearing for the first respondent and the learned counsel appearing for the second respondent. MACA 684/2014 3 3. Learned counsel for the appellant submits that the appellant has sustained injuries on her head and has undergone in-patient treatment in a private hospital from 2.12.2005 to 8.12.2005. She has produced medical bills worth Rs.3,441.72. But, the Tribunal has awarded only a paltry sum of Rs.7,000/- as compensation. The amount so awarded is very low when considering the nature of the injuries suffered by the appellant and the amount spent by her for her treatment. Therefore, he prays for enhancing the compensation. 4. Learned counsel for the second respondent, on the contrary, submits that the appellant has sustained only minor injuries for which she was amply compensated by the Tribunal. The claim for enhancement of compensation is made without any evidence supporting the same. Therefore, he prays for dismissing this appeal. MACA 684/2014 4 5. The appellant was taken to the Jubilee Mission Hospital, Thrissur, after the accident. A contusion on the right elbow and scalp injury on the left parietal region are noted in the Wound Certificate. But, cerebral concussion, contusion on the right elbow and scalp injury are noted in the Discharge Summary. She was treated conservatively with antibiotics and analgesics. Since she was diabetic, insulin was also administered. The wound was sutured. She has undergone in-patient treatment from 2.12.2005 to 8.12.2005. She was reviewed at that hospital on 21.12.2005. She was a housewife aged 36 at the time of accident. She could not have performed her duties as a housewife for a few weeks after the accident. When considering all the attendant facts involved in this case including the nature of injuries sustained, treatment given and the medical bills produced, Rs.7,000/- allowed by the Tribunal as compensation is palpably low. Therefore, on considering all the relevant aspects, a total compensation of MACA 684/2014 5 Rs.15,000/- is allowed in the place of Rs.7,000/- allowed by the Tribunal. Rs.8,000/- so allowed over and above the amount awarded by the Tribunal shall carry interest at the rate of 9% per annum from the date of filing of the petition till realisation. The second respondent Insurance Company shall deposit the amount within two months from today. 6. Learned counsel for the second respondent submits that the motor cycle was overloaded as two pillion riders were travelling on the motor cycle at the time of accident. The other pillion rider was the daughter of the appellant and the first respondent who was aged 12 at that time. The Tribunal permitted the second respondent Insurance Company to recover the amount to be paid by them from the first respondent owner-cum-driver of the motor cycle. Therefore, he prays for a similar order permitting the Insurance Company to recover the amount allowed in this appeal from the first respondent. The fact that two pillion riders were travelling on the motor cycle at the time of MACA 684/2014 6 accident is not disputed by the appellant or the first respondent. But, they contend that overloading of the motor cycle did not contribute to the accident. Moreover, the Insurance Company has not adduced any evidence in support of their contention that the accident happened due to the overloading of the vehicle. The mere fact that a motor cycle was carrying two pillion riders cannot give rise to an inference of contributory negligence unless it is positively proved that such carrying of two pillion riders actually contributed to the accident. They have relied on the ruling of a Division Bench of this Court in **Binoj Antony v. New India Assurance Company Ltd. (2014 (1)KLT 393)** in support of their contention. 7. There is no dispute with regard to the fact that the second respondent Insurance Company has not adduced any evidence in support of their contention that the accident occurred due to the overloading of the motor cycle. Therefore, the allegation that the overloading of the vehicle MACA 684/2014 7 contributed to the accident remains not proved. In the light of the ruling of this Court reported in **2014(1)KLT 393** (supra), the mere fact that a motor cycle was carrying two pillion riders cannot _ipso facto_ give rise to an inference of contributory negligence unless it is positively proved that such carrying of two pillion riders actually contributed to the accident. Moreover, the overloading of a motor cycle is not a defence available to the Insurance Company under Section 149 of the Motor Vehicles Act. In view of these facts, the second respondent Insurance Company is not entitled to recover the amount awarded by this Court in this judgment from the first respondent, owner-cum-driver of the vehicle. This appeal is allowed in part as above. Sd/BABU MATHEW P. JOSEPH JUDGE ks. MACA 684/2014 8