High Court of KeralaSingle Judge2021-06-25Appeal allowed in part; enhanced compensation a...

Mani.K.R. v. Johnson Mullakkara and The New India Assurance Co. Ltd.

Case / Petition Number:MACA NO. 961 OF 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-06-25
Court Decision / Holding: Appeal allowed in part; insurer held liable for compensation despite pillion-rider exclusion in 2001, in light of a valid comprehensive policy (citing Balakrishnan) and IRDA guidance. The notional income is fixed at Rs. 3,000 per month (Ramachandrappa). The 10% disability certificate is rejected due to lack of doctor examination (Rajkumar). Loss of earning recalculated to Rs. 6,000; pain and suffering enhanced to Rs. 15,000; loss of amenities to Rs. 10,000; other heads deemed reasonable. The total compensation is increased by Rs. 12,000 over the Tribunal's award (from Rs. 39,800 to Rs. 51,800). Interest at 7% p.a. on the enhanced amount from the date of petition till realisation, with deduction for 1,204 days, and proportionate costs to be realised from the 2nd respondent. The insurer must deposit the enhanced amount in the Tribunal within two months; appellant may seek withdrawal of the compensation.
Final Disposition: Appeal allowed in part; enhanced compensation and insurer liable; deposit and costs as directed.

Parties to the Case

Appellants / Petitioners

Mani.K.R., S/o Raghavan Kunathuvalappil

Respondents

Johnson Mullakkara
The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P. V. Chandramohan

Counsels for Respondents

• Smt. Raji T. Bhaskar

Case Synopsis & Summary

MACA 961 of 2011 arises from an O.P.(MV) 710/2002 filed before the Motor Accident Claims Tribunal, Thrissur. Mani.K.R., a pillion rider, suffered injuries in a 4 September 2001 accident. The Tribunal awarded Rs. 27,800 in total and exonerated the New India Assurance Co. Ltd., the insurer, although the vehicle was insured under a comprehensive policy. The 1st respondent rider was ex parte. The insurer contested on the grounds that the accident may not have occurred as pleaded and that the applicant's income and age were overstated. The High Court noted that pillion riders were generally excluded in 2001, but after the Supreme Court decision National Insurance Co. Ltd v Balakrishnan (2013) and an IRDA circular, insurer liability extends to pillion riders under a valid comprehensive policy. The court re-evaluated the quantum by following Ramachandrappa and Rajkumar, discarding the 10% disability certificate due to lack of doctor examination, and fixing the claimant's notional income at Rs. 3,000 per month. Loss of earnings is recalculated to Rs. 6,000; pain and suffering increased to Rs. 15,000; loss of amenities to Rs. 10,000; other heads remain reasonable. The appeal is allowed in part, with enhanced compensation by Rs. 12,000 (total Rs. 51,800) with 7% interest, payable to the claimant with costs to be borne by the insurer. The insurer must deposit the enhanced amount in the Tribunal within two months.

Legal Doctrines & Maxims

Notional income principle for determining loss of earning (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd)
Disability certificate requires examination of the examining doctor (Rajkumar v. Ajaykumar)
Pillion rider coverage under a comprehensive policy makes insurer liable (National Insurance Co Ltd v Balakrishnan)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that since the vehicle involved was covered by a valid comprehensive insurance policy, the insurer is liable to compensate the pillion rider, following National Insurance Co. Ltd v Balakrishnan and the IRDA circulars. The Tribunal's exoneration of the insurer is incorrect. The appellant seeks higher quantum, arguing for notional income in line with Ramachandrappa (Rs.3,000 per month as of 2001) and for including heads such as pain and suffering and loss of amenities. The 10% disability claim is premature since the doctor who issued Ext.A7 was not examined, per Rajkumar v Ajaykumar; thus the 10% disability cannot be sustained. The overall compensation should reflect enhanced heads and adherence to Supreme Court guidance on notional income and disability evidence.

Contentions of Respondents

The insurer contends the accident may not have occurred as pleaded and that the complainant's age, income, and occupation were incorrect. It relies on the contention that pillion riders were not ordinarily covered under the policy (though disputed by the appellant), and urged that the Tribunal's quantum should remain, or be adjusted only within the policy limits. It also argues that the disability certificate lacks corroboration since the examining doctor was not examined, and questions the claimed pain, loss of amenities and other heads.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd v. Balakrishnan & Others	2013 ACJ 199	Positive	Used to establish insurer liability to a pillion rider under a comprehensive policy.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Guided notional income fixation for calculation of loss of earnings.
Rajkumar v. Ajaykumar	(2011) 1 KLT 620 SC	Positive	Disability certificate requires doctor’s examination; applied to reject 10% disability claim.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**MACA NO. 961 OF 2011** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 25[TH] DAY OF JUNE 2021 / 4TH ASHADHA, 1943 MACA NO. 961 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 710/2002 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR,** ## **THRISSUR** ## **APPELLANT/PETITIONER:** MANI.K.R,S/O.RAGHAVAN KUNATHUVALAPPIL HOUSE, VELLACHAL P.O. ASARIKKAD,THRISSUR DISTRICT. BY ADV SRI.P.V.CHANDRA MOHAN ## **RESPONDENTS/RESPONDENTS:** 1 JOHNSON MULLAKKARA HOUSE,, P.O. PUTHUR, THRISSUR DISTRICT - 680001. 2 THE NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, 2ND FLOOR, PERINCHERY BUILDING,ROUND NORTH, THRISSUR - 680001. BY ADV SMT.RAJI T.BHASKAR SMT RAJI T BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 961 OF 2011** **2** ## **JUDGMENT** The petitioner in O.P(MV) No.710/2002 on the file of the Motor Accident Claims Tribunal, Thrissur is the appellant. The respondents in the claim petition are the respondents in the appeal. 2. The facts in the claim petition, relevant for the determination of the appeal, are; on 4.9.2001 while the appellant was a pillion rider on a motorcycle bearing when he reached near Reg.No.KL-08/R-580, Mariyapuram, the 1[st] respondent – the rider of the motorcycle applied the brake in a rash and negligent manner and the appellant fell down and sustained injuries. He was treated at the Jubilee Mission Hospital,Thrissur as an inpatient for a period of six days. The appellant was a country brick dealer earning a monthly income of Rs.8500/-. The motorcycle was insured with the 2[nd] respondent. The appellant was entitled for **MACA NO. 961 OF 2011** **3** compensation from the respondents which he quantified at Rs.1,27,000/-. 3. The 1[st] respondent did not contest the proceedings and was set ex parte. 4. The 2nd respondent - the Insurance Company of the offending vehicle – filed a written statement, inter alia, admitting that the vehicle involved in the accident had a valid insurance policy issued by it. However, it was contended that the accident did not occur as alleged in the claim petition and that the age, income and occupation of the appellant was incorrect. 5. The appellant produced and marked Exts.A1 to A8 in evidence. The 2[nd] respondent produced Exts.B1 and B1 (a) in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 1st respondent to pay the appellant an amount of Rs.27,800/- with interest **MACA NO. 961 OF 2011** **4** at the rate of 7% per annum from the date of petition till the date of actual payment along with proportionate costs. The 2[nd] respondent was exonerated of its liability as the appellant was only a a pillion rider on a motorcycle. 7. Aggrieved by the exoneration of the 2[nd] respondent of its liability and the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 2[nd] respondent. 9. The questions that emanate for consideration in the appeal are: - (i) Whether the exoneration of the 2[nd] respondent of - its liability to pay the compensation is justifiable; (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Undisputedly, the motorcycle was covered by a comprehensive policy. True, in the year 2001, the pillion **MACA NO. 961 OF 2011** **5** rider was excluded from the purview of coverage in an insurance policy. However, the Hon'ble Supreme Court in **National Insurance Company Ltd v. Balakrishnan & Others** [2013 ACJ 199] has held that if the vehicle was covered by a valid comprehensive insurance policy then the insurance company is liable to indemnify the owner for the liability in connection with the accident caused to the pillion rider. This position was confirmed by a circular issued by the IRDA. In the said circumstances, the 2[nd] respondent – insurance company - is liable to pay the compensation fixed as per the impugned award and that is proposed to be passed by this Court in this appeal. 11. Coming to the quantum of compensation fixed by the Tribunal, it is seen that the appellant had claimed that he was a country brick dealer earning a monthly income of Rs.8,500/-. However, the Tribunal fixed only an amount of Rs.2,000/- per month. 12. The Hon'ble Supreme Court in **MACA NO. 961 OF 2011** **6** **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. 13. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decision and considering the fact that the appellant was 35 years of age as in the year 2001, I am of the considered opinion that the appellant's notional income can safely be fixed at Rs.3,000/- per month. Hence, I re-fix the notional income of the appellant at Rs.3,000/- per month. 14. Although the appellant had claimed permanent disability of 10% as per Ext.A7 certificate, the Doctor who issued the said certificate was not examined. 15. The Hon'ble Supreme Court in **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] has held that the mere production of a disability certificate is insufficient unless the Doctor who issued it, is examined. In view of the **MACA NO. 961 OF 2011** **7** non-examination of the Doctor who authored Ext.A7, the assessment that the appellant has 10% disability is only liable to be rejected. 16. In view of the re-fixation of the appellant's notional income at Rs.3,000/- per month, his loss of earning is re-fixed at Rs.6,000/- instead of Rs.4,000/- fixed by the Tribunal. 17. Similarly, it is seen that the appellant had undergone hospitalisation for a period of six days. He had suffered various injuries as evident from Ext.A6 card. Therefore, I am of the opinion that the compensation awarded under the head 'pain and suffering' has to be enhanced by a further amount of Rs.7,000/-, i.e., a total amount of Rs.15,000/-. 18. The Tribunal had only awarded Rs.7,000/- as compensation for 'loss of amenities, which I feel on the lower side. Accordingly, I re-fix the compensation under **MACA NO. 961 OF 2011** **8** the said head by a further amount of Rs.3,000/- i.e, a total amount of Rs.10,000/-. ## **Other heads of claims** 19. With respect the other heads of compensation, namely, transportation, extra nourishment, clothing, medical expenses and bystander expenses, I find that the Tribunal has awarded reasonable and just compensation. 20. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 961 OF 2011** **9** |SI .No|Head of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Loss of earning|4,000|6,000| |2.|Transportation|500|500| |3.|Ex-nourishment|500|500| |4.|Damage to clothing|500|500| |5.|Expenses for treatment|6,700|6,700| |6.|Bystander expenses|600|600| |7.|Compensation for pain and suffering|8,000|15,000| |8.|Compensation for loss of amenities|7,000|10,000| ||Total|27,800 =======|39,800 =======| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.12,000/- with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of realisation, after deducting interest for a period of 1204 days **MACA NO. 961 OF 2011** **10** as ordered by this Court on 19.3.2021 in C.M.Appli. No.1496/2011, with proportionate costs to be realised from the 2[nd] respondent. The 2nd respondent shall deposit the additional compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The appellant would be at liberty to move the Tribunal for withdrawal of the compensation. **ma/28.06.2021 Sd/- C.S.DIAS, JUDGE** /True copy/