M.A.C.A.No.1225 of 2012

1 M.A.C.A.No.1225 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 3[RD] DAY OF JANUARY 2022 / 13TH POUSHA, 1943** ## **MACA NO. 1225 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 788/2007 OF ADDITIONAL MOTOR** **ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM** ## **APPELLANT/S:** BIJU CHERIAN S/O.CHERIAN, CHETTEDEATHU HOUSE, KUDAMALOOR KARA, AYMANAM VILLAGE, KOTTAYAM. BY ADV SRI.MATHEW JOHN (K) ## **RESPONDENT/S:** 1 BIJU VARGHESE S/O.VARGHESE, MATTATHIL HOUSE [NAYICKANPARAMBU], PULICHUVADU BHAGOM, KUDAMALOOR KARA, AYMANAM VILLAGE, KOTTAYAM.686 015. 2 BIJU VARKEY S/O.VARKEY, NAYICKANPARAMBU HOUSE, KUDAMALOOR POST, KOTTAYAM DISTRICT.686 017. 3 THE DIVISIONAL MANAGER ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE NO.1, BAKER JUNCTION, KOTTAYAM.686 001. BY ADVS. SRI.V.K.SUNIL -R1 and R2 SRI.VPK.PANICKER -R3 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A.No.1225 of 2012 ## **C.S.DIAS, J.** ---------------------------------------- ## **M.A.C.A.No.1225 of 2012** ## **---------------------------------------Dated this the 3[rd] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.788/2007 on the file of the Additional Motor Accidents Claims Tribunal, Kottayam. 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 that he sustained in the accident on 25.3.2007. It was his case that, while he was accompanying the goods in a goods auto-rickshaw bearing registration No.KL-5P/9270, due to the negligence of the first respondent, the auto-rickshaw overturned near toll pura at Parampuzha on Mosco Kavala-Chavittuvari 3 ## M.A.C.A.No.1225 of 2012 public road. The appellant sustained serious injuries and was treated as an inpatient at the Matha Hospital, Thellakom from 25.3.2007 to 5.4.2007. The appellant was a driver with Paragon Company and was earning a monthly income of Rs.8,000/-. The auto-rickshaw was owned by the second respondent and insured with the third respondent. The appellant claimed a total compensation of Rs.4,50,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings. 4. The third respondent had filed a writtenstatement contending that the appellant was a gratuitous passenger in the auto-rickshaw. The second respondent had not paid additional premium to cover a non-paying passenger in the goods vehicle. Therefore, the third respondent may be exonerated of its liability. 4 ## M.A.C.A.No.1225 of 2012 5. The appellant examined himself and a witness as PWs 1 and 2 and marked Exts A1 to A11 in evidence. The third respondent produced the insurance policy, 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 appellant to realise from the respondents 1 and 2 an amount of Rs.1,15,000/- with interest and cost. The third respondent was exonerated of its liability. 7. Aggrieved by the exoneration of the third respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.Mathew John, the learned counsel appearing for the appellant/petitioner, Sri.V.K Sunil, the learned counsel appearing for the respondents 1 and 2 and Sri.V.P.K Panicker, the learned Senior Counsel appearing 5 ## M.A.C.A.No.1225 of 2012 for the third respondent. 9. The questions that arise for consideration in the appeal are: (i) whether the exoneration of the third respondent/insurer is sustainable in law, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. Admittedly, the appellant was travelling in a goods auto-rickshaw, which was driven by the first respondent and owned by the second respondent. Going by the conditions in Ext B1 policy, the second respondent had not paid additional premium to cover a passenger in the goods auto-rickshaw. The question whether the insurer is liable to indemnify an owner of a goods autorickshaw is no longer res integra in view of the declaration of law by this Court in **Bajaj Alliance General Insurance Co. Ltd vs Bheema and another [MACA 1224/2012]** . 6 M.A.C.A.No.1225 of 2012 In the light of the law laid down in the aforecited decision and considering the fact that the appellant was only a gratuitous passenger in the goods auto-rickshaw, I confirm the finding of the Tribunal that the third respondent is not liable to indemnify the second respondent of its liability to pay the compensation amount to the appellant. ## **Question No.(ii)** 11. The appellant had claimed that he was a driver in Paragon Company, Kottayam and earning a monthly income of Rs.8,000/-. In order to substantiate his assertion, he had produced Ext A8 salary certificate. However, the Tribunal for the reason that Ext A8 was not corroborated by the author of the salary certificate, fixed the notional income of the appellant at Rs.3,250/-. 12. It is well-settled that, proceedings before the Tribunal is inquisitorial in nature and strict rules of 7 M.A.C.A.No.1225 of 2012 evidence are not necessary. Ext A8 salary certificate was marked in evidence without any demur or protest from the respondents. Hence, I accept Ext A8 in its entirety. As per Ext A8 salary certificate, the net monthly salary of the appellant was Rs.5,530/-. Hence, I monthly fix the salary of the appellant as certified in Ext A8 at Rs.5,530/-. ## **Loss of earnings** 13. The Tribunal has held that the appellant was indisposed for a period of four months. I confirm the said finding. However, in view of the refixation of the monthly salary of the appellant at Rs.5,530/-, I hold that the appellant is entitled to a further amount of Rs.9,120/towards loss of earnings ( i.e., Rs.5530 x 4 – Rs.13,000/-). ## **Pain and sufferings and loss of amenities** 14. It is on record, as per Ext A6 wound certificate, that the appellant had sustained a crush injury on his left wrist with bone loss and vascular injury. He was treated as 8 ## M.A.C.A.No.1225 of 2012 an inpatient for the period from 25.3.2007 to 5.4.2007. He was also indisposed for a period of four months. In the above circumstances, I hold that the appellant is entitled to further amounts of Rs.8,000/- under the head 'pain and sufferings' and Rs.14,000/- under the head 'loss of amenities'. In the result, the appeal is allowed, in part, by upholding the finding regarding exoneration of the third respondent, but by enhancing the compensation by a further amount of **Rs.31,120/-** (Rupees Thirty One Thousand One Hundred and Twenty only) (i.e., Rs.9,120/towards loss of earnings + Rs.8,000/- towards pain and sufferings + Rs.14,000/- towards loss of amenities). The respondents 1 and 2 are ordered to pay the enhanced compensation to the appellant with interest at the rate of 7.5% per annum from the date of claim petition till the date of realization and a cost of Rs.5,000/- within a period 9 M.A.C.A.No.1225 of 2012 of sixty days from the date of receipt of a certified copy of the judgment. Needless to mention that, if the amount is not paid within the stipulated time period, the appellant would be at liberty to proceed against the respondents 1 and 2 to recover the amount in accordance with law. Sd/- sks/3.1.2022. **C.S.DIAS, JUDGE**