Nimish Ali and others v. United India Insurance Co. Ltd. (MACA No. 846 of 2009)

1 MACA No.846 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 MACA NO. 846 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 2133/2004 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE APPELLANT/S:** NIMISH ALI, S/O.HIDER ALI AGED 21 YEARS, RESIDING AT ATTIYEDATH VEEDU,, CHERUVANNOOR AMSOM DESOM, P.O.FEROKE, KOZHIKODE. BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.PRAISHEEL PRAKASAM 1 MUSTHAFA, S/O.AHAMMED BAVA AGED NOT KNOWN, RESIDING AT 13/3772, ATTIYEDATH,, P.O.FEROKE, KOZHIKODE. 2 A.SHAMSUDHEEN, S/O.AHAMMED BAVA AGE NOT KNOWN, RESIDING AT ATTIYEDATH HOUSE,, P.O.FEROKE, KOZHIKODE. 3 UNITED INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE, WHITELINES BUILDINGS,, KALLAI ROAD, KOZHIKODE. BY ADVS. SMT.D.GEETHA SMT.K.SHERIN MOHAN ## **RESPONDENT/S:** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP** **FOR ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.846 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.846 of 2009 ====================== Dated this the 30[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 2133/2004 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 27.9.2004. It was his case that, on the above said day, while he was riding pillion on a motor cycle bearing registration No.KL-11/T 2002 (motor cycle), driven by the second respondent in a rash and negligent manner, the motor cycle capsized. The appellant sustained serious injuries including a galeazzi fracture to left lower arm and multiple injuries to all over his 3 MACA No.846 of 2009 body. He was treated as an inpatient for a period of two days at the Medical College Hospital, Kozhikode. The appellant was a coolie worker by profession and was earning a monthly income of Rs.5,000/-. The motor cycle was owned by the first respondent and insured with the third respondent. Hence, the appellant claimed a compensation of Rs.2,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement and an additional written statement admitting that the motor cycle had a valid insurance policy. However, it was contended that as the appellant was a pillion rider, the insurance company is not liable to indemnify the liability of the first respondent. 5. The appellant produced and marked Exts A1 to A3 series in evidence. The third respondent produced insurance policy, which was marked as Ext B1. 4 MACA No.846 of 2009 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 first respondent an amount of Rs.9,500/- with interest @ 7% per annum from the date of claim petition till the date of realisation. 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 the appeal. 8. Heard: Sri.V.S Chandrasekaran, the learned Counsel appearing for the appellant/petitioner and Smt.K.Sherin Mohan, the learned counsel appearing for the third respondent/insurer. 9. The questions that arise for consideration in the appeal are: (i) whether the exoneration of the third respondent is sustainable in law, and (ii) whether the 5 MACA No.846 of 2009 quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. The specific case of the appellant was that the accident was occurred due to the negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the motor cycle. Even though the respondents had not let in any evidence to the contrary, the specific case of the third respondent/insurer was that since no additional premium was collected from the first respondent, the third respondent is not liable to indemnify the first respondent because the appellant was a pillion rider on the motor cycle. 11. On a perusal of Ext B1 insurance policy, it is seen that it is a 'package policy'. 12. In **National Insurance Co.Ltd v. Balakrishnan and Ors. [AIR 2013 SC 473]** , the 6 MACA No.846 of 2009 Hon'ble Supreme Court has categorically held that a pillion rider is covered if the insurance policy is a 'package policy'. 13. Therefore, the contention of the third respondent that it is not liable to indemnify the liability of the owner of the motor cycle is unsustainable in law. Thus, I hold that it is the third respondent is liable to indemnify the first respondent of his liability arising out of the accident. Accordingly, I answer question No.(i) in favour of the appellant and permit the appellant to recover the compensation amount from the third respondent. ## **Question No(ii)** ## **Income** 14. The appellant had contended that he was a coolie worker by profession and was earning a monthly income of Rs.5,000/-. The Tribunal did not fix the income of the appellant. 7 MACA No.846 of 2009 15. Even though there is no material on record to prove the avocation of the appellant, the Hon'ble Supreme Court in **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. 16. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2004, I fix the notional monthly income of the appellant at Rs.4,500/-. ## **Loss of earnings** 17. It is proved, as per Ext A1 wound certificate and Ext A2 discharge card, that the appellant had sustained a fracture to his left radius. He was treated as an inpatient for a period of two days. Being a coolie worker by profession, necessarily, the appellant was indisposed for a period of three months. 8 MACA No.846 of 2009 18. In view of the fixation of the notional monthly income of the appellant at Rs.4,500/-, I award him an amount of **Rs.13,500/-** towards loss of earnings. ## **Bystander expenses, extra nourishment, damage to clothing and transportation expenses** 19. As the appellant was treated as an inpatient for a period of two days and he was indisposed for a period of three months, I award an amount of **Rs.3,000/-** towards bystander expenses, extra nourishment, transportation charges and damage to clothing. ## **Pain and sufferings and loss of amenities** 20. As the appellant had sustained a fracture to his left radius, that he was treated as an inpatient for a period of two days and that he was indisposed for a period of three months, I award the appellant an amount of Rs.15,000/- each, under the heads 'pain and sufferings' and 'loss of amenities', totaling to an amount of **Rs.30,000/-.** 9 MACA No.846 of 2009 21. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled to compensation as calculated and fixed above and given in the table below for easy reference. |SI<br>.<br>No|Head of claim|Amounts awarded<br>by this Court| |---|---|---| |1|Transport to hospital,Damage<br>to clothing, extra nourishment<br>and bystander expenses|3,000/-| |2|Loss of earnings|13,500/-| |3|Pain and sufferings|15,000/-| |4|Loss of amenities|15,000/-| ||Total|46,500/-| In the result, the appeal is allowed, by permitting the appellant to recover from the third respondent an amount of **Rs.46,500/-** (Rupees Forty Six Thousand Five Hundred only) with interest on the said amount at the rate of 7% per annum from the date of claim petition till the date of realisation, after deducting 10 MACA No.846 of 2009 interest for a period of 49 days, i.e. the period of delay in filing the appeal and as ordered by this Court on 3.11.2021 in C.M Appln 1/2009, and cost of Rs.10,000/-. The third respondent is ordered to deposit the compensation amount with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant in accordance with law. sks/30.11.2021 **C.S.DIAS, JUDGE**