Mashood v. Sakkariya and Abdul Saleem C.P. and IFFCO Tokio General Insurance

**MACA NO. 565 OF 2011** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943** **MACA NO. 565 OF 2011** **AGAINST THE JUDGMENT IN OP(MV) 441/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** MASHOOD, S/O.MUHAMMED CHEERATHADAYAN VEEDU, MUKKANNAM, MANNARKKAD, PALAKKAD DISTRICT. BY ADVS. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI ## **RESPONDENTTS/RESPONDENTS:** 1 SAKKARIYA, S/O MUHAMMED, CHEERATHADAYAN VEEDU, MUKKANNAM, MANNARKKAD, PIN-678582. 2 ABDUL SALAM C.P. S/O.ABDUL RAHIMAN, CHERIKKAPADATH HOUSE, MUKKANNAM, MANNARKKAD, PIN-678582.( NAME OF THE 2ND RESPONDENT CORRECTED AS " ABDUL SALEEM C.P" AS PER ORDER DATED 26/03/12 IN I.A. 540/12 IN MACA 565/2011) 3 IFFCO TOKIO GENERAL INSURANCE AIMS, 2ND FLOOR, DECCAN COMPLEX,, BEHIND GOVT., AYURVEDIC HOSPTIAL,, METTUPALAYAM STREET, PALAKKAD678 014. BY ADV P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 565 OF 2011** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.441/07 on the file of the Motor Accidents Claims Tribunal, Ottappalam. 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 an accident on 14.2.2007. It was his case that, on the abovesaid date, while he was travelling pillion on a motorcycle from Mannarkkad to Mukkanam, when he reached a place named 'Althara', the 1[st] respondent rode the motorcycle in a negligent manner and he lost control of the vehicle which overturned on the road. The appellant sustained serious injuries and was treated at the Government Hospital, Perinthalmanna and, thereafter, at the Alshifa Hospital, Perinthalmanna for a **MACA NO. 565 OF 2011** ## **3** period of five days. He sustained serious injuries including ACL Avulsion fracture, intercondylar fracture of the right tibia, haemarthrosis right knee and fracture of the lateral condyalar of the right tibia. The appellant was employed in a bakery and was earning a monthly income of Rs.5,000/-. The respondents 2 and 3 were the owner and insurer of the motorcycle. The appellant claimed a total compensation of Rs.2,30,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent- insurer - filed a written statement refuting the allegations in the claim petition. However, it was contended that the accident occurred due to the negligence of the appellant. It was also contended that though the motorcycle had a valid insurance coverage, no additional premium was collected to cover the pillion rider. Hence, the 3[rd] respondent may be **MACA NO. 565 OF 2011** **4** exonerated of its liability. 5. The appellant produced and marked Exts.A1 to A8 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the respondents 1 and 2 an amount of Rs. 44,056/- with interest at the rate of 8% per annum from the date of petition till the date of realisation and a cost of Rs.1,000/-. The 3[rd] respondent was exonerated of its liability on the ground that no additional premium was paid to cover the pillion rider. 7. Aggrieved by the exoneration of the 3[rd] respondent-insurer and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. **MACA NO. 565 OF 2011** **5** 8. Heard; Sri.R.Sreehari, the learned counsel appearing for the appellant/petitioner and Sri.P.Jacob Mathew, the learned counsel appearing for the 3rd respondent- insurer. 9. The questions that arise for consideration in the appeal are: (i) Whether the exoneration of the 3[rd] respondent is sustainable in law? and (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.(i)** 10. The appellant had filed I.A No.489/2012 directing the 3[rd] respondent to produce the policy of the motorcycle. But, the insurance policy was not produced. It is now conceded before this Court that, the motorcycle was covered by a package policy. 11. In **National Insurance Co. Ltd v.** **Balakrishnan** [AIR (2013) SC 473], the Hon'ble **MACA NO. 565 OF 2011** **6** Supreme Court has categorically held that a package policy would cover the liability of the insurer for payment of compensation to the occupant of a car or a pillion rider. 12. In view of the empathetic pronouncement of law and considering the fact that the motorcycle was covered by a package policy and that the appellant was a pillion rider, I hold that the finding of the Tribunal that the 3[rd] respondent – insurer was not liable to pay compensation amount is erroneous and against the settled position of law. In the above narrated circumstances, I set aside the finding of the Tribunal, exonerating the 3[rd] respondent, and hold that the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent – the owner of the motorcycle – arising out of the accident. Hence, the 3[rd] respondent is directed to pay the compensation amount . Accordingly, I answer Question No.(i) in favour of the appellant. **MACA NO. 565 OF 2011** **7** ## **Question No.(ii)** 13. The appellant had claimed that he was a worker in a bakery and was earning a monthly income of Rs.5,000/-. Nevertheless, the Tribunal fixed the monthly notional income of the appellant at Rs.3,000/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 15. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2007, I hold that the appellant's monthly notional income can safely be fixed at Rs.5,000/- as claimed in the claim petition. **MACA NO. 565 OF 2011** **8** ## **Loss of earnings** 16. The appellant had claimed an amount of Rs.22,500/- towards loss of earnings. However, the Tribunal awarded compensation of Rs.6,000/- holding that the appellant was indisposed for a period of two months. 17. Taking into account the serious injuries that the appellant had sustained in the accident, as evidenced by Ext.A2 wound certificate and Ext.A4 discharge summary, which show that the appellant had sustained four fractures, I am constrained to hold that the appellant was indisposed for a period of four months. Accordingly, I refix the compensation for loss of earnings at Rs.20,000/instead of Rs.6,000/- awarded by the Tribunal. ## **Pain and sufferings and loss of amenities** 18. The appellant had claimed a compensation of Rs.20,000/- under the head 'pain and sufferings' and Rs.20,000/- under the head 'loss of amenities'. It is **MACA NO. 565 OF 2011** **9** proved that the appellant was treated as an inpatient for a period of five days, he was indisposed for a period of four months and he had sustained four fractures. In the above factual matrix, I hold that the appellant is entitled for enhancement of compensation under the heads 'pain and sufferings' by a further amount of Rs.8,000/- and 'loss of amenities' by a further amount of Rs.5,000/-. ## **Other heads of compensation** 19. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 20. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold 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. 565 OF 2011** **10** **==> picture [432 x 402] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded Amounts<br>by the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 6,000 20,000<br>2. Transport to hospital 1,000 1,000<br>3. Damage to clothing 5,00 500<br>4. Bystander expenses 1,000 1,000<br>5. Extra nourishment 500 500<br>6. Medical Expenses 18,050 18,050<br>7 Pain and suffering 12,000 20,000<br>8. Loss of amenities 5,000 10,000<br>Total 44,050 71,050<br>====== ======<br>**----- End of picture text -----**<br> In the result, the appeal is allowed by directing the 3[rd] respondent insurer to pay the appellant an amount of Rs.71,050/- with interest at the rate of 8% per annum from the date of petition till the date of realisation and proportionate costs. The 3[rd] respondent is ordered to deposit the compensation amount with interest and costs **MACA NO. 565 OF 2011** **11** before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner provided that the appellant has not received any amount as compensation from the respondents 1 and 2. In case, the respondents 1 and 2 have already deposited the compensation amount as per the impugned award, such amount paid by them as per the impguned award shall be repaid to them and the only the balance amount shall be paid to the appellant. The Tribunal shall disburse the compensation amount to the appellant /petitioner in accordance with law. ma/13.10.2021 Sd/- **C.S.DIAS, JUDGE**