Rini v. Siby Thomas and The New India Assurance Company Ltd.

**MACA NO. 893 OF 2009** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 MACA NO. 893 OF 2009** **AGAINST THE AWARD IN OP(MV) 211/2005 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL,THODUPUZHA** ## **APPELLANT/PETITIONER:** RINI, W/O.SIBY, MUTTATHUPADATHU HOUSE,, VELLAYAMKUDY,VELLAYAMKUDY POST,, KATTAPPANA VILLAGE. BY ADV SRI.MATHEW JOHN (K) ## **RESPONDENTS/RESPONDENTS:** 1 SIBY THOMAS, MUTTATHUPADATHU HOUSE,, VELLAYAMKUDY POST,KATTAPPANA. 2 THE NEW INDIA ASSURANCE COMPANY LTD. REP.BY ITS DIVISIONAL MANAGER,, DIVISIONAL OFFICE NO.II,, MUNDUKOTTACKAL CHAMBERS,, KANJIKUZHY POST,KOTTAYAM. BY ADV SRI.RENIL ANTO KANDAMKULATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 893 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.211/2005 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the injuries sustained to her in an accident on 10.1.2004. It was her case that, on the above-said day, while she was travelling pillion on a motorcycle bearing Reg. No.KL-06/3165 from Upputhara to Kattappana, on seeing a Jeep coming from the opposite direction, the first respondent – the rider and owner of the motorcycle, swerved the motorcycle to one side and the appellant fell down and sustained injuries, including a **MACA NO. 893 OF 2009** ## **3** closed fracture shaft of the right femur. She was treated as an inpatient at the St.John's Hospital, Kattappana from 10.1.2004 to 15.1.2004 and 27.1.2004 to 29.1.2004. The appellant was a Staff Nurse and was earning a monthly income of Rs.4,000/-. The motorcycle was insured with the second respondent. Hence, the appellant claimed a compensation of Rs.1,90,000/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The first respondent did not contest the proceeding and was set ex parte. 4. The second respondent had filed a written statement contending that the accident occurred due to the negligence of the appellant herself because her shawl had got entangled in the wheel which caused the accident. It was also contended that the appellant was a gratuitous passenger on the motorcycle and, therefore, the second respondent was not liable to indemnify the insured. Hence, the second respondent prayed for the dismissal of **MACA NO. 893 OF 2009** **4** the claim petition. 5. The appellant got herself examined as PW1 and marked Exts.A1 to A11 in evidence. The insurance policy was summoned and marked as Ext.X1. 6. The Tribunal, after analysing the pleadings and materials on record, found that the appellant was entitled to a compensation of Rs.1,04,110/-, but entered into a finding that the appellant had contributed to the accident to the extent of 40%. Therefore, the Tribunal deducted 40% of the compensation amount and directed the second respondent to pay the appellant an amount of Rs.62,500/- with interest from the date of filing of the claim petition till the date of realisation. 7. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. **MACA NO. 893 OF 2009** ## **5** 8. Heard; Sri.Mathew John, the learned counsel appearing for the appellant/petitioner and Sri.Renil Anto Kandamkulathy, the learned counsel appearing for the second respondent- insurer. 9. The points that emanate for consideration in the appeal are: (i) Whether the finding of contributory negligence is sustainable in law? and (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Point No.(i)** ## **Negligence and liability** 10. The definite case of the appellant was that the accident happened while she was riding pillion on the motorcycle, due to the negligence of the first respondent. To substantiate her assertion, she got herself examined as PW1 and marked Ext.A2 final report filed by the Upputhara Police in Crime No.10/2004. Ext.A2 proves that the **MACA NO. 893 OF 2009** **6** accident occurred due to the negligence of the first respondent. The respondents have not let in any evidence to discredit Ext.A2 final report. Moreover, it is an undisputed fact that the appellant was a pillion rider on the motorcycle. 11. It is also well settled by this Court in **Sajad Saheer v. Rajeev** [2017 ( 3) KHC 294] that no negligence can be attributed as against the pillion rider. 12. In the light of the fact that the respondents have not let in any evidence to discredit Ext.A2 final report and the appellant being a pillion rider on the motorcycle, I am of the definite view that the finding of the Tribunal deducting 40% of the compensation amount towards contributory negligence of the appellant is unsustainable in law. Thus, I set aside the finding and hold that the appellant is entitled to the entire amount of compensation awarded by the Tribunal. **MACA NO. 893 OF 2009** **7** 13. It is proved and established that Ext.X1 insurance policy was a package policy. In view of the law laid down by the Hon'ble Supreme Court in **National Insurance Co. Ltd v. Balakrishnan and others [** AIR 2013 SC 473], it is well settled that a pillion rider is covered by a package policy. Therefore, the contention of the second respondent – insurer that it is not liable to pay the compensation amount is also untenable. Thus, I confirm the finding of the Tribunal and hold that the second respondent is liable to indemnify the insured. ## **Point No.(ii)** ## **Income** 14. The appellant had claimed that she was a Nurse by profession and was earning a monthly income of Rs.4,000/-. The Tribunal fixed notional monthly income of the appellant at Rs.3,000/-. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** **MACA NO. 893 OF 2009** **8** [(2011) 13 SCC 236], the Hon'ble Supreme Court 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 re-fix the notional monthly income of the appellant at Rs.4,000/- as claimed in the claim petition. ## **Loss of earnings** 17. The appellant had claimed that she was indisposed for a period of eight months. The Tribunal held that the appellant was indisposed for a period of two months. 18. On a consideration of the fact that the appellant had sustained a fracture to her femur and was treated as an inpatient for a period of five days and subsequently she was treated as an inpatient for a period of three days, I hold that she was indisposed for a period of four months. **MACA NO. 893 OF 2009** ## **9** 19. In view of the re-fixation of the notional monthly income of the appellant at Rs.4,000/-, I award her an amount of Rs.16,000/- under the head ‘loss of earnings’, instead of Rs.6,000/- awarded by the Tribunal. ## **Disability** 20. The appellant was examined by a Four Member Medical Board attached to the Taluk Headquarters Hospital, Thodupuzha. The Medical Board, as per Ext.A11, found that the appellant has a permanent disability of 12% due to the shortening of her right femur and has difficulty in squatting and has constant pain. The Tribunal scaled down the disability and fixed at 8%. 21. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] , the Hon'ble Supreme Court has held that, what needs to be looked into in a case of injury, is the functional disability of the injured-claimant. **MACA NO. 893 OF 2009** ## **10** 22. On a re-appreciation of Ext.A11, which is issued by a four Member Medical Board, I am of the definite view that the disability assessed by the Medical Board has to be taken on its face value . Hence, I re-fix the functional disability of the appellant at 12%. ## **Multiplier** 23. The appellant was aged 27 years at the time of the accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '17'. ## **Loss of earning capacity** 24. Taking into account the above-mentioned factors, namely, the notional monthly income of the appellant at Rs.4,000/-, her functional disability at 12% and the multiplier at '17', I award her an amount of Rs.97,920/as compensation for 'loss of earning capacity’ instead of Rs.48,960/- awarded by the Tribunal. **MACA NO. 893 OF 2009** **11** ## **Loss of amenities** 25. As the appellant has suffered a functional disability of 12%, that she was indisposed for a period of four months, and that she was treated as an inpatient for a period of eight days, I award her an amount of Rs.15,000/- under the head 'loss of amenities' . ## **Other heads of compensation** 25. With respect to the other heads of compensation awarded by the Tribunal, I find the same to be reasonable and just. 26. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 893 OF 2009** ## **12** **==> picture [395 x 373] intentionally omitted <==** **----- Start of picture text -----**<br> SI.No Head of claim Amount Amounts<br>awarded by the modified and<br>Tribunal (in recalculated by<br>rupees) this Court<br>1 Loss of earnings 6,000 16,000<br>2. Transport to hospital 1,000 1,000<br>3. Bystander expenses 2,000 2,000<br>4. Extra nourishment 1,500 1,500<br>5. Medical Expenses 29,650 29,650<br>6 Pain and suffering 15,000 15,000<br>7. Loss of amenities -- 15,000<br>8. Loss of earning capacity 48,960 97,920<br>Total 1,04,110 1,78,070<br>========== =========<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of Rs.73,960/and also holding that the appellant is entitled to the balance compensation amount of Rs.41,664/- awarded by the Tribunal (i.e the amount that was deducted towards contributory negligence of the appellant), totalling to an **MACA NO. 893 OF 2009** **13** amount of Rs.1,15,624/- with interest at the rate of 6% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The second respondent-insurer is ordered to deposit the amount of Rs.1,15,624/- 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 same shall be disbursed to the appellant /petitioner, after deducting her liabillity towards court fee, and in accordance with law. ma/24.03..2022 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**