Prince Kurian S/O Kurian v. Vincent N.Y., Renju Francis, The Branch Manager, The New India Assurance 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** ## **WEDNESDAY, THE 2ND DAY OF AUGUST 2017/11TH SRAVANA, 1939** ## **MACA.No. 489 of 2009 ( )** **------------------------IN OPMV 962/2005 of MACT, MUVATTUPUZHA DATED 03-11-2008 ----------------------------------------------------** ## **APPELLANT/PETITIONER :** **----------------------------------------** **PRINCE KURIAN S/O.KURIAN RESIDING AT PULLIKATTIL HOUSE, MAMALAKANDOM,, KUTTAMPUZHA.** ## **BY ADVS.SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU** ## **RESPONDENT(S)/RESPONDENTS :** **----------------------------------------------------** **1. VINCENT.N.Y, S/O YACOB, NAMMANARIYIL HOUSE, H.NO. 384/W NO.1 KOTTAPPADY PO,, KOTHAMANGALAM.** ## **2. RENJU FRANCIS, PALLIPARAMBIL HOUSE** ## **MURIKKASSERI PADAMUGHAM PO, IDUKKY.** ## **3. THE BRANCH MANAGER, THE NEW INDIA** ## **ASSURANCE CO.LTD. ERNAKULAM.** **R,R3 BY ADV. SRI.JOY GEORGE R,R3 BY ADV. SMT.PRAICY JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & ANIL.K.NARENDRAN, JJ. ============================= M.A.C.A. No.489 of 2009** **============================ Dated this the 2[nd] day of August, 2017** ## **JUDGMENT** ## Anil.K.Narendran, J. This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Muvattupuzha dated 03.10.2008 in O.P.(MV)No.962/2005, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 25.05.2005 while he was travelling in a motor cycle bearing Reg.No.KL-17-1434 owned and ridden by respondents 1 and 2 and respectively and insured with the third respondent. At the place of accident, due to the rash and negligent riding of the motor cycle by the second respondent rider, it hit on the pillar of a bridge and the appellant/claimant sustained serious injuries. Claiming a total compensation of Rs.4,00,000/- under different heads, _M.A.C.A. No.489 of 2009_ _-2-_ claim petition was filed before the Tribunal. 2. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant. A copy of the insurance policy was marked as Ext.B1 on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent riding of motor cycle by the second respondent rider. However, on a finding that Ext.B1 insurance policy will not cover the risk of a pillion rider, the third respondent insurer was exonerated from the liability, and the first respondent owner and second respondent rider were held liable to pay the amount of compensation to the appellant/claimant. Under different heads, the Tribunal awarded a total compensation of Rs.95,550/- and directed the first and second respondents _M.A.C.A. No.489 of 2009_ _-3-_ to deposit the said amount before the Tribunal together with interest at the rate of 10% per annum from the date of petition till realisation. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads and also challenging exoneration of the third respondent insurer from the liability to indemnify the first respondent owner, the appellant/claimant is before this Court in this appeal. 5. Heard arguments. 6. The issues that arise for consideration in this appeal are as to whether the Tribunal was justified in exonerating the third respondent insurer from the liability to pay compensation to the appellant/claimant, and also whether he is entitled for enhancement of the compensation already awarded by the Tribunal under different heads. 7. As far as the first issue is concerned, the insurance _M.A.C.A. No.489 of 2009 -4-_ policy of the vehicle in question is on record as Ext.B1, which is a package policy. If that be so, as held by the Apex Court in **National Insurance Company Ltd v. Balakrishnan and another** [2013 (1) SCC 731]; and followed by the decision of the Division Bench of this court in **Francis K.T. v. Sabu Augustine and another** [2015 (5) KHC 320], the third respondent insurer is liable to cover the risk of a pillion rider. In view of the law laid down in the decisions referred supra, the finding of the Tribunal in exonerating the third respondent insurer from the liability to pay the amount of compensation awarded to the appellant/claimant is set aside. 8. As far as the second issue regarding the quantum of compensation is concerned, we find that the appellant/claimant claimed a monthly income of Rs.5,000/- as a Computer Designing and Video Graphics Engineer. At the time of accident, he was aged 30 years. _M.A.C.A. No.489 of 2009_ _-5-_ No documents were produced before the Tribunal in order to prove his monthly income. The appellant/claimant has also not chosen to mount the box. It was in the said circumstances that the Tribunal took the monthly income notionally as Rs.2,500/-, for the purpose of assessing compensation under different heads. 9. In _**Ramachandrappa v. Manager Royal Sundaram Alliance Insurance Company Ltd 2011 (13)SCC 236**_ , the Apex Court notionally fixed the monthly income of a Coolie, who met with a motor accident in the year 2004 as Rs.4,500/-. Therefore, we deem it appropriate to take the notional monthly income of the appellant/claimant as Rs.4,500/- for the purpose of assessing compensation under different heads. 10. The injuries sustained by the appellant/claimant as borne out from Ext.A6 wound certificate read thus :- _“B1 temporal contusion, diffuse subarachnoid hemorrhage, right frontal subdural hematoma,_ _M.A.C.A. No.489 of 2009_ _-6-_ _fracture left temporo parietal bone, fracture occipital bone, right sixth nerve palsy and left lung contusion”_ The nature of treatment undergone, as borne out from Ext.A7 discharge summary, reads thus :- _“Surgical consultation was done for left long contusion and was managed accordingly.”_ For the injuries sustained in the accident, the appellant/claimant had undergone inpatient treatment for a period of 22 days. Ext.A8 medical certificate would show that, as on 28.02.2007 the appellant/claimant carries the risk of post traumatic seizures and having momery impairment and speech deficits. Ext.A9 series of medical bills would show that he had spent a sum of Rs.63,728/- towards medical expenses. 11. The compensation awarded by the Tribunal under different heads reads thus :- _M.A.C.A. No.489 of 2009_ _-7-_ |**_Compensation Awarded_**|**_In Rupees_**| |---|---| |(a)Loss of earning|Rs.7,500/-| |(b)Transportation expenses|Rs.500/-| |(c)Extra nourishment|Rs.500/-| |(d)Bystanders expenses|Rs.3,300/-| |(e)Medical expenses|Rs.63,700/-| |(f)Pain & sufferings|Rs.12,000/-| |(g)Loss of amenities|Rs.8,000/-| |**_Total_**|**_Rs.95,500/-_**| 12. Towards loss of earning the Tribunal awarded a sum of Rs.7,500/-, at the rate of Rs.2,500/- per month for a period of 3 months. Since we have notionally refixed the monthly income of the appellant/claimant notionally at Rs.4,500/- the compensation under this head is reworked as Rs.13,500/-(4500x3), resulting an additional compensation of **Rs.6,000/-.** 13. Towards transportation expenses, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2005, we deem it appropriate to grant a sum of Rs.1,000/- under this head, resulting an additional compensation of **Rs.500/-.** _M.A.C.A. No.489 of 2009_ _-8-_ 14. Towards extra nourishment, the Tribunal awarded a sum of Rs.500/-. Since the accident is of the year 2005, the appellant/claimant is entitled for compensation under this head at the rate of Rs.100/- per day for 22 days of hospitalisation. In the result, the compensation under this head is re-fixed as Rs.2,200/(100x22) resulting an additional compensation of **Rs.1,700/-.** 15. Towards bystanders expenses, the Tribunal awarded a sum of Rs.3,300/-. Since the accident is of the year 2005, the entitlement of the appellant/claimant can only be at the rate of Rs.150 per day. The Tribunal has rightly assessed the compensation under the said head as Rs.3,300/-, which warrants no interference in this appeal. 16. Towards pain and sufferings, the Tribunal awarded a sum of Rs.12,000/-. Considering the fact that the appellant/claimant had sustained multiple fractures _M.A.C.A. No.489 of 2009_ _-9-_ and other serious injuries, and as a result of the accident and he had undergone inpatient treatment for a period of 22 days, we deem it appropriate to refix the compensation under this head as Rs.25,000/-, resulting an additional compensation of **Rs.13,000/-.** 17. Towards loss of amenities, the Tribunal awarded a sum of Rs.8,000/-. Though the appellant has not chosen to produce any disability certificate to prove any permanent disability that had arisen out of the injuries sustained in the accident, considering the nature of injuries sustained, as reflected in Ext.A7 discharge summary, we deem it appropriate to refix the compensation under the head loss of amenities as Rs.10,000/-, resulting an additional compensation of **Rs.2,000/-.** 18. Towards damages to clothing, no amount has been awarded by the Tribunal. Considering the fact that _M.A.C.A. No.489 of 2009_ _-10-_ the accident is of the year 2005, we deem it appropriate to grant a sum of **Rs.1,000/-** under this head. In the result, the appellant/claimant would be entitled for an additional compensation of **Rs.24,200/-** (Rupees twenty four thousand and two hundred only) (6,000+500+1,700+13,000+2,000+1,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the vehicle is not in dispute, and in view of our finding that Ext.B1 insurance policy will cover the risk of the pillion rider, the third respondent insurer is directed to deposit the entire amount of compensation (including the compensation awarded by the Tribunal) together with interest before the Tribunal with in a period of 2 months from the date of receipt of a certified copy of this judgment. _M.A.C.A. No.489 of 2009_ _-11-_ The appeal is disposed of as above. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL.K.NARENDRAN, JUDGE** VS /TRUE COPY/ PA TO JUDGE