High Court of KeralaDivision Bench2015-07-09Appeals allowed. Insurance Company held liable ...

MACA Nos. 2739/2008 & 2943/2014, High Court of Kerala

Case / Petition Number:MACA Nos. 2739/2008; 2943/2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T.R. Ramachandran Nair
K.P. Jyothindranath
Judgment Date: 2015-07-09
Court Decision / Holding: The appeals are allowed. Insurance Company held liable for payment of enhanced compensation; 9% interest per annum from the petition date; insurer excluded from interest for 2923 days of delay per CMA 3388/2014. Tribunal directed to deposit the enhanced amount before the Tribunal within three months, and to release to the appellant the Rs.25,000 deposited earlier under Section 173 of the Motor Vehicles Act. The insurer must deposit the amount with interest, less the already deposited amount, and the Tribunal is to release the funds; No costs.
Final Disposition: Appeals allowed. Insurance Company held liable for payment of enhanced compensation with interest. Tribunal directed to deposit the enhanced amount before the Tribunal within three months, and to release Rs.25,000 deposited earlier under Section 173. No costs.

Parties to the Case

Appellants / Petitioners

DR.P.K.KORAH (deceased)
DR.PRIYA ANJO
DR. PREETHI JEEVAN
PRAVEEN JOSE GRIGARI

Respondents

DR.ALEYAMMA KORAH
SANTHOSH
THE NEW INDIA ASSURANCE CO.LTD. Ettumanoor
MURALEEDHARAN NAIR.T.P.
DEVASIA THOMAS
THE NEW INDIA ASSURANCE CO.LTD. Ettumanoor

Legal Representation & Advocates

Counsels for Petitioners

• C.M. Tomy
• Mathew Skaria
• Aginov Mathappan

Counsels for Respondents

• Aginov Mathappan
• P.K.Santhamma
• John Joseph Vettikkad

Case Synopsis & Summary

These two Motor Accident Claims Appeals arise from an award of the Motor Accidents Claims Tribunal, Pala, in OP(MV) No.996/2006. The owner of a private car challenged liability finding that the insurer was not liable for compensation to his wife, who sustained injuries when an autorickshaw collided with his car on 12 July 2006 at Athirampuzha. The Tribunal found the car driver negligent and held the insurer not liable for gratuitous passengers, citing earlier decisions (Bajaj Allianz v. Niranjan; Amrit Lal Sood). The Kerala High Court examined whether a comprehensive/package policy covers occupant liability, relying on Supreme Court precedents. It held that a comprehensive/package policy covers liability for occupants and pillion riders, aligning with National Insurance Co. Ltd. v. Balakrishnan (AIR 2013 SC 473) and Amrit Lal Sood. The court also re-examined compensation for the claimant wife, calculating net income for six months, and correcting deductions to reflect actual income tax. It re-fixes heads of damage—medical bills, pain and suffering, loss of amenities, transport, nourishment, and clothing—and arrives at a total enhanced compensation of Rs. 3,05,200, with 9% interest from the date of petition. The insurer is directed to deposit the enhanced amount before the Tribunal within three months, less any amount already deposited, and to release to the appellant the previously deposited Rs.25,000 under Section 173. The appeals are allowed; there is no costs order.

Provisions of Law Cited

Motor Vehicles ActSection 173 of the Motor Vehicles Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the policy Ext.B5 is a ‘package policy’ and therefore covers occupant liability, including pillion riders. Citing National Insurance Co. Ltd. v. Balakrishnan (AIR 2013 SC 473) and Amrit Lal Sood v. Kausalya Devi Thappar, they contended that a comprehensive/package policy indemnifies the risk of a pillion rider; thus the insurer is liable. They also submitted that the accident involved the wife of the appellant traveling in the car, meriting compensation for medical expenses, loss of earnings, pain and suffering, and loss of amenities, with tax-adjusted income. For computation, they urged using actual income and six months’ loss, not a blanket deduction. They pressed for enhanced compensation.

Contentions of Respondents

Respondents contended that the policy (package vs Act policy) and the terms do not cover gratuitous passengers; Accordingly, insurer liability should be restricted. They urged the tribunal’s findings on liability and liability limits to stand; they maintained the awarded figures were appropriate given the policy’s terms and evidence. They opposed enhanced damages and argued against interpreting policy to extend coverage beyond standard third-party risk.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Bajaj Allianz General Insurance Co. Ltd. v. B.M. Niranjan and another	2008 ACJ 554	Mentioned Only	Cited by Tribunal but the Kerala High Court ultimately relies on Balakrishnan and Amrit Lal Sood for package-policy coverage rather than Niranjan.
Amrit Lal Sood v. Kausalya Devi Thappar	1998 ACJ 531 (SC)	Positive	Supreme Court decision cited as supportive authority for liability under package policy for pillion/rider.
National Insurance Co. Ltd. v. Balakrishnan and Anr.	AIR 2013 SC 473	Positive	Key authority establishing that comprehensive/package policies cover occupant liability, including car occupants.

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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 T.R.RAMACHANDRAN NAIR** ## **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 9TH DAY OF JULY 2015/18TH ASHADHA, 1937** ## **MACA.No. 2739 of 2008 ( )** **-------------------------AGAINST THE AWARD IN OP(MV) 996/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 28-07-2008** **APPELLANT/RESPONDENT NO.1:** **-----------------------DR.P.K.KORAH, PERUMALIL HOUSE ETTUMANOOR, KOTTAYAM [DIED]** ## *** ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED:** - ***2. DR.PRIYA ANJO, AGED 39 YEARS, D/O. LATE DR.P.K.KORAH KAVALAKATTU HOUSE, EAST FORT P.O., PIPELINE ROAD, THRISSUR-680 001.** - ***3. DR. PREETHI JEEVAN, AGED 36 YEARS, D/O. LATE DR.P.K.KORAH GANAM, HMC ROAD, EDAPPALLY P.O., KOCHI 682 024** - ***4. PRAVEEN JOSE GRIGARI,AGED 29 YEARS S/O. LATE DR.P.K.KORAH, PERUMALIL HOUSE, ETTUMANOOR, KOTTAYAM 686 631** **[THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 VIDE ORDER DATED 27.1.2014 IN I.A.183/2014 IN MACA 2739/2008]** ## **BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA** ## **RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 6:** - **----------------------------** **1. DR.ALEYAMMA KORAH, AGED 62 W/O.DR.P.K.KORAH, PERUMALIL HOUSE, ETTUMANOOR KOTTAYAM.** **2. SANTHOSH, S/O.PRABHAKARAN, MATHALIPURAYIL HOUSE, MEENACHIL TALUK, LALAM VILLAGE PAYAPAR KARA.** **3. THE NEW INDIA ASSURANCE CO.LTD. ETTUMANOOR.** ## **4. MURALEEDHARAN NAIR.T.P.,** ## **S/O.PADMANABHAN NAIR, PANDURITHANDATHIL HOUSE, ELAKAD.** ## **MACA.No. 2739 of 2008 ( )** ## **5. DEVASIA THOMAS, S/O.THOMAS, KUTTIKATTUNNEL HOUSE, ATHIRAMPUZHA VILLAGE, MANNANAM KARA KOTTAYAM DISTRICT.** ## **6. THE NEW INDIA ASSURANCE CO.LTD., ETTUMANOOR.** **R1 BY ADV. SRI.AGINOV MATHAPPAN R3 BY ADV. SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2015, ALONG WITH MACA. 2943/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **T.R. RAMACHANDRAN NAIR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.2739/2008 & 2943/2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of July, 2015** ## **J U D G M E N T** ## **Ramachandran Nair, J.** Both these appeals are from the award in O.P.(M.V.) No.996/2006 on the file of the Motor Accidents Claims Tribunal, Pala. M.A.C.A.2739/2008 which is filed by the owner of the vehicle who was first respondent before the Tribunal and the claimant is the appellant in M.A.C.A.2943/2014. 2. We heard Adv. Sri. C.M. Tomy and Mathew Skaria for the appellant in M.A.C.A.No.2739/2008 and Adv. Smt. P.K. Santhamma for the Insurance Company. 3. We heard Adv. Sri. Aginov Mathappan for the appellant in M.A.C.A.No.2943/2014 and Adv. Sri. John Joseph Vettikkad for the Insurance Company. 4. As far as M.A.C.A.2739/2008 is concerned, part of the award of the Tribunal is under challenge by the owner of the vehicle, viz; as regards the liability of the Insurance M.A.C.A.Nos.2739/2008 & 2943/2014 **-2-** Company for payment of the amount of compensation. 5. The vehicle is a private car which was insured with the 6[th] respondent insurer. Ext.B5 is the copy of the policy produced by the Insurance Company which shows that it was a package policy. The Tribunal on an assessment of the evidence took the view that the Insurance Company (third respondent) is not liable as there is no coverage for gratuitous passengers. While discussing the matter, the Tribunal referred to the decision of the Karnataka High Court in **Bajaj Allianz General Insurance Co. Ltd. v. B.M. Niranjan and another [2008 ACJ 554]** and of the Apex Court in **Amrit Lal Sood v. Kausalya Devi Thappar [1998 ACJ 531 (SC)]** . 6. The latter decision of the Supreme Court held that Insurance Company is liable to indemnify the risk of pillion rider in package policies. 7. The learned counsel for the appellant submitted that the issue is covered in favour of the appellant in the light of the decision of the Apex Court in **National** M.A.C.A.Nos.2739/2008 & 2943/2014 **-3-** ## **Insurance Company Ltd. v. Balakrishnan and Anr.** **[AIR 2013 SC 473]** .The question raised was whether the occupant of a car and a pillion rider of a motor cycle are covered under the comprehensive/package policy. The Apex Court in paragraph 21 held as follows: 21. In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing from a “Comprehensive/Package Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “Comprehensive/ Package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act Policy' which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “Comprehensive/Package Policy”, the liability would be covered. 8. We have gone through policy Ext.B5 wherein in the top of the second page it is clearly written as 'package'. In the light of the above, we have no doubt in our mind that the occupant of the car is covered by the policy. M.A.C.A.Nos.2739/2008 & 2943/2014 **-4-** 9. The accident in this case occurred while the wife of the appellant was travelling in their car. She sustained serious injuries. It occurred on 12.7.2006 at 8.30 p.m. at Athirampuzha. She was travelling in a car bearing registration No.KL-5/V-1881 through the Ettumanoor -Athirampuzha road. It was alleged that an autorickshaw bearing registration No.KL-5/E-9507 driven by the 5[th] respondent before the Tribunal hit the car. The Tribunal on an assessment of the evidence found that the driver of the car was negligent. 10. The question that has been raised in M.A.C.A.2943/2014 is one concerning with the award of compensation. She had sustained fracture humerus and had undergone a surgery. Ext.A6 is the medical certificate issued form Lisie Hospital, Ernakulam which supports the above. She remained in the hospital for 3 days. The Tribunal found that she was entitled for loss of earnings for a period of six months. For assessing the same Ext.A11 income tax return was considered. The annual income claimed is as M.A.C.A.Nos.2739/2008 & 2943/2014 **-5-** Rs.1,50,000/-. But the Tribunal deducted 1/3[rd] for personal expenses and took the loss of earnings for six months at Rs.50,000/-. Learned counsel for the appellant submitted that the said method cannot be justified and deduction for personal expenses only in death cases. 11. We agree with the above said contention. We have gone through Ext.A11 the income tax return. The taxable income going by the same will be around Rs.1,30,000/- after deducting Rs.18,998/- as the income tax payable. Therefore, we take the annual income for assessing the compensation at Rs.1,30,000/- and going by the same she will be entitled for Rs.65,000/- as loss of earnings for 6 months also. She will be also entitled for enhancement of amount towards pain and suffering and loss of amenities. 12. Accordingly, we re-fix the compensation in the following manner: |**Head of claim**|**Amount re-fixed in Rs.**| |---|---| |Transportation to hospital|5000| |Extra nourishment|1000| |Damages to clothing|1000| M.A.C.A.Nos.2739/2008 & 2943/2014 **-6-** |**Head of claim**|**Amount re-fixed in Rs.**| |---|---| |Medical bills|32773| |Pain and suffering|35000| |Compensation for permanent disability|10835x12x9x12/100 140421.6| |Loss of amenities|25000| |Loss of earnings for six months|65000| |**Total**|**305194.6** **Rounded off to** **Rs.3,05,200** **(Rupees three lakhs five** **thousand two hundred** **only)**| 13. The enhanced compensation will carry interest at the rate of 9% per annum from the date of petition till realisation. 14. In the light of order passed in C.M.A.No.3388/2014 in M.A.C.A.No.2943/2014, the Insurance Company will not be liable for the payment of interest for 2923 days covered by the delay. We hold that the Insurance Company is liable as the policy is a package policy and direct the Insurance Company to deposit the amount of compensation with interest, less the amount ## M.A.C.A.Nos.2739/2008 & 2943/2014 **-7-** already deposited, before the Tribunal within a period of three months. On such deposit being made, the appellant will be entitled for the release of the amount. 15. There will be a direction to the Tribunal to release the amount of Rs.25,000/- deposited by the appellant in M.A.C.A.No.2739/2008 under Section 173 of the Motor Vehicles Act, for filing the appeal. The appeals are accordingly allowed. There will be no order as to costs in the appeal. Sd/- **T.R. RAMACHANDRAN NAIR JUDGE** Sd/- ## **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/