Muhammed Sheriff N.T. v. P. Aneez and The National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938 MACA.No. 1676 of 2008 ( ) -------------------------AGAINST THE AWARD IN O.P.(M.V)No. 3706/2001 of Ist ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 18-02-2008 APPELLANT/PETITIONER: --------------------------- MUHAMMED SHERIFF N.T., AGED 34 YEARS, NADUTHODIYIL HOUSE, P.O.PUTHOOR (VIA KODUVALLY), CALICUT, REP. BY POWER OF ATTORNEY HOLDER RAJULA, W/O.MUHAMMED SHERIFF.N.T, AGED 23 YEARS, NADUTHODIYIL HOUSE, P.O. PUTHOOR, (VIA KODUVALLY), CALICUT. BY ADVS.SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. P.ANEEZ, S/O.AHAMMED KUTTY, PURAYIL HOUSE.P.O, PUTHOOR, CALICUT, (RC OWNER AND DRIVER OF KL-11/M 5875 MOTOR CYCLE). 2. THE NATIONAL INSURANCE CO. LTD., P.B. NO. 811, NOOR COMPLEX,, MAVOOR ROAD, CALICUT, (INSURER KL-11/M 5875, MOTOR CYCLE). R2 BY ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.1676 of 2008 -------------------------------Dated 19th August, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the judgment and award in O.P.(M.V)No.3706 of 2001 passed by the Ist Additional Motor Accident Claims Tribunal, Kozhikode. The appellant herein was the petitioner therein. He moved the claim petition under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained by him in a motor vehicle accident that occurred on 16.9.2001. On that day, he was travelling as a pillion rider on a motor cycle bearing Reg.No.KL-11M-5875. It was being ridden by the first respondent. Owing to the rash and negligent driving of the first respondent the motor cycle capsized. Consequently, the appellant sustained injuries. He had been an inpatient from 16.9.2001 to 20.10.2001. The injuries sustained in the accident resulted in permanent disability. It is in the said circumstances that he filed the above mentioned claim petition seeking a total compensation of 1,50,000/-. As per the impugned award, the₹ Tribunal granted an amount of 93,824/- with interest at the rate of₹ 8% per annum from the date of petition till realisation along with a cost M.A.C.A.No.1676/2008 2 of ₹ 1000/-. Evidently, it is dissatisfied with the quantum of compensation awarded therein that the captioned appeal has been preferred. 2. Before the Tribunal, both sides did not adduce any oral evidence. The respondents had not adduced any documentary evidence as well. On the side of the appellant Exts.A1 to A6 were got marked. The impugned award was passed appreciating the evidence on record and considering the rival contentions. 3. We have heard Adv.Sri.K.M.Jamaludheen, the learned counsel for the appellant and Adv.Sri.M.A.George, the learned counsel appearing for the 2[nd] respondent - insurance company. 4. Besides challenging the quantum of compensation the appellant has also raised serious challenge against the exoneration of the 2[nd] respondent from the statutory liability to indemnify the first respondent. It is contended that the reason that it was a package policy and no additional premium was collected could not have been taken as a reason for excluding the 2[nd] respondent from the statutory liability. M.A.C.A.No.1676/2008 3 5. The learned counsel appearing for the 2[nd] respondent Insurance Company resisted the contentions and attempted to sustain the award of the Tribunal. It is contended that since the policy in respect of the offending vehicle is only a package policy and no additional premium was collected the Tribunal was right in excluding the 2[nd] respondent from the liability to indemnify the first respondent. The sustainability of the said contention has to be looked into in the light of the settled position of law in that regard. In the light of the decision of the Hon'ble Apex Court in **Francis K.T.** v. **Sabu Augustine and another** reported in **2015 (5) KHC 320** rendered, virtually, relying on its decision in **National Insurance Company Limited** v. **Balakrishnan and another** reported in **AIR 2013 SC 473** there cannot be any doubt with respect to the position that a package policy has to be considered as a comprehensive policy and therefore, merely by contending that the vehicle involved in the accident is covered only by a package policy the insurer cannot wriggle out of its statutory liability. In the contextual situation, it is also apposite to refer to the decision of a Single Bench of this Court in **Babu Mathew** v. **Biju Mathew (2008 (4) KLT 628)** . In that case, it was held that in the case of a package policy merely because no extra premium for a M.A.C.A.No.1676/2008 4 passenger in a private car was not collected it would not enable the insurer to claim for exoneration from the statutory liability. The said decision would definitely apply in the case of the pillion rider of a motor cycle which is covered by a package policy. In the light of the aforesaid decisions the finding of the Tribunal cannot be sustained. In other words, it has to be held that since the policy in question has to be treated as a comprehensive policy the 2[nd] respondent ought not to have been excluded from the liability to indemnify the first respondent. In such circumstances, the finding of the Tribunal that the 2[nd] respondent is entitled to be excluded from the statutory liability to indemnify the first respondent is vacated and it is also held that the 2[nd] respondent being the insurer of the offending vehicle belonging to the first respondent, who is its insured owner, the 2[nd] respondent is liable to indemnify the first respondent. 6. The only surviving question to be considered is whether the appellant is entitled to get enhancement of compensation under any of the heads. After considering the rival contentions we are of the view that the appellant is entitled for enhancement of compensation only under two heads viz., compensation for `permanent disability' and for `loss of earning'. The accident occurred in the year 2001. The M.A.C.A.No.1676/2008 5 appellant was then aged 27 years and he was a coolie. The Tribunal took the monthly income of the appellant as 1,500/- as against his₹ claim of 4,000/- as his monthly income for calculation purpose.₹ Taking into account the fact that the accident occurred in the year 2001 we are of the view that the monthly income of the appellant has to be fixed as 2,500/-, taking the decision of the Hon'ble Apex Court in₹ _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ as the decision for guidance in the matter of fixation of monthly income. In that case, the monthly income was taken as 4,500/- of a coolie who met with an₹ accident in the year 2004. In this case, taking into account the age of the appellant the multiplier applicable in terms of the decision of the Hon'ble Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ , is `17'. However, the Tribunal adopted the multiplier of `18'. In such circumstances, the multiplier applicable in this case is taken as `17'. As per Ext.X1 medical certificate issued by the Medical Board, the permanent disability of the appellant is 15%. Evidently, the entire percentage of disability was accepted by the Tribunal. In such circumstances, with the modified multiplicand and multiplier the compensation payable for permanent disability has to be re-assessed. On such re-assessment the appellant would be entitled to M.A.C.A.No.1676/2008 6 get an amount of 27,900/- additionally (2500 x 12 x 17 x 15/100 =₹ 76,500 - 48600 = 27,900). The Tribunal took the period of loss of earnings as two months. Taking note of the injuries sustained by the appellant in the accident as revealed from Ext.A2 we do not find any reason to interfere with the said fixation. However, in the light of the re-fixed monthly income a proportionate enhancement has to be granted to the appellant under the head `loss of earning'. In that view of the matter he is entitled to get an amount of 2,000/- additionally₹ under that head. In the light of the discussion as above, the appellant is entitled to get a total enhanced compensation of 29,900/- which is₹ rounded off to 30,000/-, over and above the amount granted by the₹ Tribunal as per the impugned award. It is granted. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The respondents are jointly and severally liable to compensate the appellant. In view of the finding that the 2[nd] respondent is liable to indemnify the owner of the offending vehicle the 2[nd] respondent is directed to deposit the entire amount viz., the amount awarded as per the impugned award by the Tribunal, in terms of the said award regarding interest and costs and also the additional M.A.C.A.No.1676/2008 7 compensation granted by us along with interest, as mentioned above, within a period of three months from the date of receipt of a copy of this judgment. There will be no order as to costs, in this appeal. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS