P.M.RAJITH v Abdul Kareem & The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939 MACA.No. 3013 of 2008 ( ) -------------------------AGAINST THE AWARD IN OPMV 1101/2005 of MACT VADAKARA DATED 15-09-2008 APPELLANT(S)/PETITIONER: ----------------------- ## P.M.RAJITH AGED 38 YRS., PULINKUNNUMMAL MEETHAL HOUSE, POST KEEZHAL, VATAKARA, PIN-673 104. BY ADVS.SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S):RESPONDENTS ------------------------------------ 1. MR.ABDUL KAREEM, S/O.MOIDU EZHUTHACHAN KANDIYIL HOUSE, POST KEEZHAL, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 104. 2. THE ORIENTAL INSURANCE CO.LTD., SREENIDHI BUILDINGS, P.B.NO.27, NARAYANA NAGARAM, POST-VATAKARA, KOZHIKODE, PIN-673 101. R2 BY ADV. SRI.VPK.PANICKER R1 BY ADV. SRI.MANSOOR.B.H. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.3013 OF 2008 ==========================** Dated this the 23[rd ] day of May, 2017 ## **JUDGMENT** Anil K. Narendran, J. This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Vadakara dated 15.9.2008 in O.P.(MV). No.1101 of 2005. Appellant is the claimant in the said claim petition filed under section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained in a motor vehicle accident which occurred on 4.7.2005 while he was travelling as pillion rider on a motor cycle bearing Reg.No.KL 11/J 8810 owned by the first respondent herein and insured with the second respondent herein. According to the claimant, due to the rash and negligent riding of the motor cycle by its rider, the vehicle hit on a stay wire of the Electricity Board. The claimant fell down and sustained injuries. Claiming a total compensation of Rs.2,00,000/- for the injuries sustained in the accident, the claim petition was filed before the Tribunal. **M.A.C.A.No.3013/2008** 2 2. Before the Tribunal, the first respondent owner remained ex parte. The second respondent-insurer filed written statement contending that though the vehicle in question was validly insured with them during the relevant time, the policy would not cover the liability of a pillion rider, as no additional premium was paid. The second respondent insurer has also denied the negligence alleged against the rider of the motor cycle. 3. Before the Tribunal, no oral evidence was tendered by both the sides. On the side of the claimants, Exts.A1 to A6 were marked and the disability certificate issued by the District Medical Board was marked as Ext.X1. On the side of the respondents, a copy of the insurance policy was marked as Ext.B1 4. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motor cycle by its rider. Regarding the insurance coverage of the vehicle, the Tribunal held that the conditions of Ext.X1 policy would not cover the liability of a pillion rider and as such, absolved the second respondent insurer from the liability to pay compensation to the appellant/claimant. On the question of quantum of compensation, after considering the relevant **M.A.C.A.No.3013/2008** 3 materials on record, the Tribunal awarded total compensation of Rs.79,014/- under different heads together with interest at the rate of 6% per annum from the date of petition till date of payment and Rs.2,000/- as cost. 5. Now, the appellant/claimant is before this Court in this appeal, claiming enhancement of the compensation awarded by the Tribunal and also contending that the Tribunal went wrong in exonerating the second respondent insurer from the liability to pay the amount of compensation. 6. We heard the learned counsel on both sides. 7. Regarding the question as to whether the Tribunal was justified in exonerating the second respondent from the liability to pay the amount of compensation awarded to the appellant/claimant, we find from a perusal of Ext.X1 policy that it is a liability only policy. As such, the said policy will not cover the risk of a pillion rider and the Tribunal cannot be found fault with in arriving at such a conclusion. We also notice that in spite of exoneration of the second respondent insurer from the liability to pay the amount of compensation, the first respondent owner has not chosen to challenge the said finding by filing an appeal. Therefore, we proceed with the matter based on the **M.A.C.A.No.3013/2008** 4 finding of the Tribunal that the second respondent insurer is not liable to indemnify the first respondent owner. 8. Next we will deal with the quantum of compensation awarded by the Tribunal under different heads, in order to find out whether the compensation awarded by the Tribunal represents just and reasonable compensation. 9. The injuries sustained by the appellant in the accident, as borne out from Ext.A2 accident-cum-wound certificate are as follows:- 1. Grade III B supra malleulos fracture of left leg. 2. Fracture of the body of mandible. 3. Fracture of right sub condyler region. 4. Fracture of right zygomatic arch. 5. Fracture of right maxillary sinus. 6. Lacerated wound over the chin and left medial malleulos. The appellant had undergone inpatient treatment at Medical College Hospital, Kozhikode for a period of 31 days from 5.7.2005 to 5.8.2005. Ext.X1 disability certificate would show that the appellant has sustained a permanent disability of 5% due to the injuries sustained in the accident. 10. The compensation awarded by the Tribunal under different heads reads thus:- **M.A.C.A.No.3013/2008** 5 |**_Name of head_**|**_Amount_**<br>**_awarded_**| |---|---| |Pain and suffering|25000| |Bystander expenses and extra<br>nourishment|6200| |Transportation expenses|1500| |Mental shock and<br>inconvenience|10000| |Medical bills|7913.56| |Loss of income|8000| |Permanent disability|20400| 11. Going by the claim petition, at the time of accident, the claimant was a contract worker and was earning a monthly income of Rs.5,000/-. The appellant has not chosen to enter the box. In the absence of any reliable materials, the Tribunal reckoned his monthly income as Rs.2,000/-. 12. The accident is of the year 2005. Considering the fact that at the time of the accident, the appellant was an able bodied person aged 32 years, who was eking livelihood as contract worker, we deem it appropriate to re-fix his monthly income as Rs.4,500/-. The Tribunal adopted the multiplier of 17. Going by the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010** **(2) KLT 802],** the proper multiplier is 16. Therefore, on re-working **M.A.C.A.No.3013/2008** 6 the compensation payable under the head disability, it comes to Rs.43,200 (4500x12x16x5/100). After deducting a sum of Rs.20,400/- awarded by the Tribunal under the said head, the appellant will be entitled for an additional compensation of **Rs.22,800/-** . 13. The Tribunal awarded Rs.8000/- towards loss of earning for a period of four months (2000x4), considering the nature of the injuries sustained by the appellant. Since we have already re-fixed the monthly income of the appellant notionally at Rs.4,500/-, the compensation payable under this said head is reworked as 18,000/(4500x4). After deducting Rs.8,000/- awarded by the Tribunal, the appellant will be entitled for an additional compensation of **Rs.10,000/-** under that head. 14. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation which warrants no interference in this appeal. In the result, the appellant will be entitled for an additional compensation of **Rs.32,800/-** (22800+10000) in this appeal which will carry interest at the rate of 8% from the date of the petition till realisation. Since the second respondent insurer is not liable to **M.A.C.A.No.3013/2008** 7 indemnify the first respondent owner since the appellant injured is only a pillion rider, the appellant will be entitled to recover the said amount by proceeding against the first respondent owner. No order as to costs. **Sd/-** **C.T. RAVIKUMAR** **(JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.No.3013/2008** 8 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.No.3013/2008** 9