MACA No.1371 of 2009

1 MACA No.1371 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 14[TH] DAY OF JANUARY 2022 / 24TH POUSHA, 1943** **MACA NO. 1371 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1731/2004 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS** **TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** - **1 M.B.MAMMEDKOYA, S/O.SEETHIKUTTY AGED 61 YEARS, RESIDING AT JAMTHAZ MANZIL,, P.O.ELATHOOR, KOTTAYEDATH BAZAR, KOZHIKODE. * (DIED)** - **2 SAINABA M.B, AGED 68 YEARS** - **W/O.LATE M.B.MAMMEDKOYA, RESIDING AT JAMTHAZ MANZIL, P.O.ELATHUR, CHETTIKULAM, KOZHIKODE.** - **3 M.B. SEREENA, AGED 51 YEARS, D/O. LATE M.B. MAMMEDKOYA, RESIDING AT JAMTHAZ MANZIL, P.O. ELATHUR, CHETTIKULAM, KOZHIKODE.** - **4 M.B. ARIFA,** **AGED 48 YEARS, D/O. LATE M.B. MAMMEDKOYA, RESIDING AT JAMTHAZ MANZIL, P.O. ELATHUR,CHETTIKULAM, KOZHIKODE. 5 M.B. THAHIRA, AGED 46 YEARS, D/O. LATE M.B.MAMMEDKOYA, RESIDING AT JAMTHAZ MANZIL, P.O. ELATHUR, CHETTIKULAM, KOZHIKODE.** - **6 M.B. SULFIKKAR, AGED 44 YEARS, S/O. LATE M.B. MAMMEDKOYA, RESIDING AT JAMTHAZ MANZIL, P.O. ELATHUR, CHETTIKULAM, KOZHIKODE.** - **7 M.B.JAMSHAD, AGED 41 YEARS, S/O. LATE.M.B.MAMMEDKOYA, RESIDING AT JAMTHAZ MANZIL, P.O. ELATHUR, CHETTIKULAM, KOZHIKODE.** ***ADDITIONAL APPELLANTS 2 TO 7 ARE IMPLEADED AS ADDITIONAL APPELLANT 2 TO 7 AS PER ORDER DATED 12/11/2021 IN I.A 3/2021 IN MACA 1371/2009.** BY ADV LATHA PRABHAKARAN ## **RESPONDENT/S:** - 1 **N.T.ABOOBACKER,S/O.KUNHALI AGED 48 YEARS, RESIDING AT VELLOOR NADAKKAL HOUSE,, KARIKKAMKULAM, P.O.CIVIL STATION, KOZHIKODE. * (DELETED) RESPONDENT NO.1 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 12/11/2021 IN I.A. 4/ 2021 IN MACA 1371/2009** - 2 **NATIONAL INSURANCE COMPANY LIMITED NOOR COMPLEX, NEAR ARAYIDATHUPALAM, KOZHIKODE.** BY ADVS. DEEPA GEORGE R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.01.2022, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1371 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.1371 of 2009** **====================== Dated this the 14[th] day of January, 2022.** ## **JUDGMENT** The original appellant was the petitioner in OP (MV) No.1731/2004 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode. Pending the appeal, the original appellant died and his legal representatives have been impleaded as additional appellants 2 to 7. The appellants have also deleted the first respondent in the appeal from the party array. Therefore, only the original second respondent/insurer in the appeal, who was the second respondent before the Tribunal is on the party array. Thus, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition 3 MACA No.1371 of 2009 under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries he sustained in an accident on 10.8.2004. It was his case that, on the above said date, while he was riding pillion on a motorcycle bearing registration No.KL-11/S 3633 from Elathoor to Kozhikode, due to the negligence of the rider of the motorcycle – the first respondent, the motorcycle capsized and the petitioner sustained multiple injuries including a fracture. He was treated at the Baby Memorial Hospital, Kozhikode as an inpatient for a period of 11 days. The first respondent was the owner and the second respondent was the insurer of the motorcycle. The petitioner was a coolie worker with different Contractors and was earning a monthly income of Rs.5,000/-. Hence, the petitioner claimed a compensation of Rs.2,46,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The first respondent did not contest the 4 MACA No.1371 of 2009 proceeding. 4. The second respondent/insurer had filed a written statement and an additional written statement admitting the insurance coverage of the motorcycle. Nevertheless, it was contended that as the petitioner was a pillion rider, the second respondent was not liable to indemnify the first respondent of its liability as the first respondent had not paid additional premium. Therefore, the second respondent prayed for exoneration. 5. The petitioner had produced and marked Exts A1 to A4 in evidence. The second respondent had produced the insurance policy certificate, which was marked as Ext B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to recover from the first respondent a consolidated amount of Rs.40,000/- with 5 MACA No.1371 of 2009 interest, on the ground that the policy did not cover the pillion rider. Therefore, the second respondent was exonerated. But, the Tribunal directed the second respondent to pay the cost of the proceeding to the petitioner. 7. Aggrieved by the exoneration of the second respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Jamaludheen.K.M, the learned counsel appearing for the appellants and Smt.Deepa George, the learned counsel appearing for the second respondent/insurer. 9. The questions that arise for consideration in the appeal are: (i) whether the exoneration of the second respondent is sustainable in law, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. 6 MACA No.1371 of 2009 ## **Question No.(i)** 10. The Tribunal for the reason that the first respondent had not paid any additional premium to cover the pillion rider, exonerated the second respondent of its liability. On a perusal of Ext B1, it is seen that the insurance policy is a comprehensive policy. 11. The Hon'ble Supreme Court in **National Insurance Co.Ltd v. Balakrishnan and Ors. [AIR 2013 SC 473]** has empathetically held, based on the circular of the Insurance Regulatory Development Authority, that the insurer is liable to indemnify the liability of the insured arising out of an accident caused to a pillion rider travelling on a vehicle covered by a comprehensive policy. 12. In view of the clear enunciation of law in **Balakrishnan** (supra) and the fact that Ext B1 is a comprehensive policy, I hold that the exoneration of the second respondent/insurer by the Tribunal is erroneous 7 MACA No.1371 of 2009 and wrong. Therefore, I set aside the said finding and answer Question No.(i) in favour of the appellants and permit them to recover the compensation amount from the second respondent/insurer. ## **Question No.(ii)** ## **Income** 13. The petitioner had contended that he was a coolie worker by profession and earning a monthly income of Rs.5,000/-. 14. The Tribunal, without fixing the notional monthly income of the petitioner, awarded him only the medical expenses of Rs.38,619/-, which was rounded off to Rs.40,000/-. The course adopted by the Tribunal is patently wrong and unjustifiable. 15. It is settled law, in a catena of decisions, that in a claim under Sec.166 of the Motor Vehicles Act, 1988, the Tribunal has to consider the claim under each and every head raised in the claim petition and give 8 MACA No.1371 of 2009 reason for awarding or refusing compensation under each head. 16. In the case at hand, the Tribunal has conveniently avoided considering the heads of claim other than the medical expenses. 17. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 18. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2004, I fix the notional monthly income of the petitioner, who claimed to be a coolie worker, at Rs.4,500/-. ## **Loss of earnings** 19. It is proved, as per Ext A2 wound certificate, that the petitioner had sustained a fracture on his left 9 MACA No.1371 of 2009 femur. Being a coolie worker, necessarily he would have been indisposed for a period of four months. In view of the fixation of the monthly income of the petitioner notionally at Rs.4,500/-, I award him an amount of **Rs.18,000/-** towards loss of earnings. ## **Bystander expenses and Extra Nourishment** 20. Ext A2 establishes that the petitioner was treated as an inpatient for a period of 11 days. Therefore, I award him an amount of Rs.300 per day for a period of 11 days towards bystander expenses, which works out to **Rs.3,300/** -. Likewise, I award him an amount of Rs.150/- per day for a period of 11 days towards extra nourishment, which amounts to **Rs.1650/-.** Also, I award the petitioner **Rs.1,000/-** towards transportation expenses. ## **Medical Expenses** 21. Ext A4 medical bills substantiate that the petitioner had incurred an amount of Rs.38,619/- for his 10 MACA No.1371 of 2009 medical treatment, which was rounded off to Rs.40,000/by the Tribunal. I confirm the said finding. ## **Pain and sufferings and Loss of amenities** 22. The petitioner had claimed an amount of Rs.25,000/- each under the heads 'pain and sufferings' and 'loss of amenities'. The Tribunal did not award any amount under the said heads. 23. Taking into consideration the fact that the petitioner was treated as an inpatient for a period of 11 days, that he was indisposed for a period of four months, and that he had suffered a fracture to his left femur, I award him an amount Rs.10,000/- each under the above two heads, totalling to **Rs.20,000/-.** ## **Loss due to disability** 24. As the petitioner had not produced any document to substantiate that he had suffered permanent disability, I hold that he is not entitled to any amount under the said held. 11 MACA No.1371 of 2009 25. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the petitioner is entitled to enhancement of compensation as modified and recalculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|Nil|18,000/-| |2|Transportation expenses|Nil|1,000/-| |3|Extra nourishment|Nil|1,650/-| |4|Bystander expenses|Nil|3,300/-| |5|Medical expenses|40,000/-|40,000/-| |6|Pain and sufferings|Nil|10,000/-| |7|Loss of amenities etc|Nil|10,000/-| ||Total|40,000/-|83,950/-| In the result, the appeal is allowed by enhancing the compensation by an amount of **Rs.43,950/-** (Rupees Forty Three Thousand Nine Hundred and Fifty only) with interest at the rate of 12 MACA No.1371 of 2009 7% per annum on the enhanced compensation from the date of claim petition till the date of realisation after deducting interest for a period of 93 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 12.11.2021 in C.M Appln No.1/2009 and a cost of Rs. 5,000/-. In the light of the findings on Question No.(i), the original second respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the additional second appellant – the wife of the original appellant /petitioner, in accordance with law. SD/- sks/15.1.2022 **C.S.DIAS, JUDGE**