P.K. Sasidharan v. T.D. Natesan, K.A. Mathew & The United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 24TH DAY OF JULY 2013/2ND SRAVANA, 193** ## **MACA.No. 1151 of 2009 ( )** **-------------------------AGAINST THE AWARD IN OPMV 1994/2000 of ADDITIONAL M.A.C.T., ERNAKULAM DATED 28.1.2008** ## **APPELLANT(S)/PETITIONER:** **----------------------------------------** **P.K. SASIDHARAN, AGED 57 YEARS, S/O. KUNJAN, RESIDING AT PONNATTU, HOUSE NEAR AIMS HOSPITAL, PONEKKARA, ELAMAKKARA P.O.** **BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------------------------------** ## **1. T.D. NATESAN, THATTANIPARAMBIL HOUSE, KUTHAPPADY THAMMANAM, KOCHI -32.** **2. K.A. MATHEW, S/O. ANTONY, KAVUNKAL HOUSE, WEST OF TODDY SHOP, PONEKKARA ELAMAKKARA, P.O.** **3. THE UNITED INDIA INSURANCE COMPANY LIMITED, JOS TRUST BUILDING, CHITTOOR ROAD, COCHIN -35.** ## **R3 BY ADV. SMT.S.JAYASREE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 1151 of 2009 ================== Dated this the 24[th] day of July, 2013 J U D G M E N T ## Ramakrishnan, J.: The claimant in O.P.(M.V).No.1994/2000 on the file of the Motor Accidents Claims Tribunal, Ernakulam, is the appellant herein. The appellant filed application for compensation before the Tribunal for the injuries and consequential disability sustained by him in a motor vehicle accident caused on account of the negligent driving of the scooter, in which, he was travelling as a pillion rider, driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent. After considering the evidence on record, the Tribunal found that there is no negligence proved on the part of the rider of the scooter and in the absence of any negligence on the part of the rider of the motor cycle, the claimant is not entitled to maintain a claim under Section 166 of the Motor Vehicles Act. Though the Tribunal has assessed a total compensation of ` 42,345/- on various heads in view of the finding that negligence has not been proved, ultimately dismissed the application filed by the appellant. Dissatisfied with the dismissal of the application, the m.a.c.a.1151/09 - : 2 :- appellant has come to this Court with the above appeal. 2. Heard the learned counsel for the appellant and the insurance company. 3. The learned counsel for the appellant submitted that he is travelling in the scooter as a pillion rider and it is the duty of the driver to see that the safety of the pillion rider is protected. Even assuming that a person suddenly crossed the road, it is for the rider to see that nothing should happen to the pillion rider and should apply brake in such a way not to cause any harm to the pillion rider travelling in the vehicle. So the finding of the court below that there is no negligence on the part of the rider of the vehicle is unsustainable in law and the same is liable to be set aside is the contention raised. Further, according to the learned counsel for the appellant, the amount awarded under various heads is also less considering the nature of injuries sustained. So he claimed enhancement of compensation on all heads as well. 4. On the other hand, the learned counsel for the insurance company submitted that even going by the evidence of PW1, the injured, no negligence is made out and it is an inevitable accident and so the Tribunal was perfectly justified in m.a.c.a.1151/09 - : 3 :- dismissing the application finding that there is no negligence on the part of the rider of the vehicle. The amount awarded is also just and proper. Though in the lower court it was contended that it was an 'Act Only Policy', the learned counsel for the insurance company conceded that it is a 'comprehensive policy'. 5. We have considered the rival contentions of both parties. 6. It is an admitted fact that when the appellant was travelling in the scooter driven by the 2[nd] respondent as a pillion rider, the accident occurred. It is true that PW1 had stated before the court below that the accident occurred when the rider of the scooter applied sudden brake while a pedestrian crossed the road suddenly and due to that, he was thrown away from the vehicle and sustained injuries. That alone is not sufficient to come to the conclusion that there was no negligence on the part of the rider of the vehicle. The rider of the vehicle has to anticipate that the pedestrians are likely to cross the road and keeping this in mind he must drive the vehicle carefully in such way as to keep safety for the passenger he was taking in the vehicle. That was not observed by the rider of the vehicle in this case. Further, the police had registered a case against the 2[nd] m.a.c.a.1151/09 - : 4 :- respondent for rash and negligent driving. Further it was fairly conceded that the 2[nd] respondent was charge-sheeted by the police for rash and negligent driving. Under the above circumstances, we feel that the finding of the court below that there was no negligence on the part of the rider of the scooter is unsustainable in law and the same is liable be set aside. We hold that the accident occurred due to negligent driving of the vehicle by the 2[nd] respondent. 7. As regards the compensation is concerned, the appellant sustained, “oblique fracture of mandible left parasymphysis extending to right side, fracture of right clavicle, fracture base of Ist metacarpal bone left, lacerated wounds over the face right side and multiple abrasions all over the body”. But no disability certificate has been produced. The Tribunal has accepted the entire monthly income claimed by the petitioner as the monthly income for the purpose of assessing the compensation. Considering the nature of injuries sustained and the period of treatment undergone, in the absence of any document to show that he sustained any permanent disability on account of the injuries sustained, we feel nothing to interfere with the assessment of the compensation made by the Tribunal m.a.c.a.1151/09 - : 5 :- and the amount awarded appears to be just and proper and the appellant is not entitled to any enhancement of compensation. 8. As regards the liability of the insurance company is concerned, since it was admitted by the counsel for the insurance company that the policy is an Act Only Policy, in view of dictum laid down by the decision reported in **National Insurance Co. Ltd. v. Balakrishnan & another** , 2013 (1) SCC 731, the insurance company is liable to cover the liability of pillion rider carried in the scooter. So the insurance company is liable to pay the amount awarded by the Tribunal together with interest at the rate of 9% per annum from the date of claim petition till date of payment. Two months' time is granted to the insurance company to deposit the amount. With the above modification of the impugned award of the Tribunal, this appeal is disposed of. Sd/S.SIRI JAGAN, JUDGE Sd/K.RAMAKRISHNAN, JUDGE In para 8 of the judgment, it has been mentioned that the policy is an “Act Only Policy” instead of “Comprehensive Policy”. It is a mistake, which has to be corrected. Accordingly, the words m.a.c.a.1151/09 - : 6 :- “Act Only Policy” occurring in para 8 of the judgment is corrected to read as “Comprehensive Policy”. Sd/S.SIRI JAGAN, JUDGE Sd/sdk+ K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. To Judge. m.a.c.a.1151/09 - : 7 :- ///True copy/// P.A. To Judge.