Saju D.O. Ouseph v. United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 31ST DAY OF OCTOBER 2017/9TH KARTHIKA, 1939 MACA.No. 339 of 2010 ( ) ------------------------AGAINST THE AWARD IN OPMV 2169/2004 of M.A.C.T.,PERUMBAVOOR DATED 19-09-2007 APPELLANT(S)/PETITIONER IN OPMV: ------------------------------- SAJU.D.O. S/O. OUSEPH, AGED 36 YEARS, DEVASAMKUDY HOUSE, MATTOOR, MATTOOR.P.O.,MATTOOR VILLAGE,ALUVA TALUK. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI RESPONDENT(S)/RESPONDENT NO.3 IN OPMV: -------------------------------------- UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, P.B.NO.42, PUTHUSERY COMPLEX,, 2ND FLOOR, GOVT. HOSPITAL JUNCTION, ALUVA-683101. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & B. SUDHEENDRA KUMAR, JJ.** ------------------------------------------------- ## **M.A.C.A. No. 339 of 2010** ------------------------------------------------- Dated this the 31[st] day of October, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal by the petitioner in O.P. (MV) No. 2169 of 2004, is directed against the judgment and award passed thereon by the Motor Accidents Claims Tribunal, Perumbavoor, whereby and whereunder an amount of Rs. 61,360/- was granted as compensation. The appellant seeks for enhancement of the quantum of compensation. He sustained injuries, that constrained him to file the aforementioned claim petition, in a motor vehicle accident occurred on 27-8-2004 at about 9 p.m. He was then travelling as a pillion rider on the motor vehicle bearing Registration No. KL-7AS-3842. In the Claim Petition, it is alleged that the accident had occurred M.A.C.A. No.339 of 2010 -2- due to the rash and negligent driving of the rider of the said motor vehicle. 2. Before the Tribunal, the respondents 1 and 2 remained ex-parte. The 3[rd] respondent/Insurance Company contested the matter and contended that the accident had occurred as the appellant was travelling on the pillion of the Scooter ridden by the respondent, in a drunken stage. The Tribunal, upon considering the evidence consisted of Exts. A1 to A8 on the side of the appellant and Ext. B1 on the side of the respondent, arrived at a conclusion that the accident had occurred solely due to the negligence of the 2[nd] respondent, the rider of the motor cycle. As against the claim of Rs. 1,50,000/-, the Tribunal has granted an amount of Rs. 61,360/- as compensation. The contention of the appellant is that he was deprived of just compensation. -3- M.A.C.A. No.339 of 2010 3. We have heard the learned counsel for the appellant and the learned counsel appearing for the respondent/Insurance Company. 4. Before the Tribunal, the respondent Insurance Company took up a contention that the offending vehicle was covered only by an 'act only' policy at the time of the accident and since the claimant was then a pillion rider, no liability could be fastened to indemnify the insured owner, in the said circumstances. The Tribunal accepted the said contention and exonerated the respondent/Insurance Company from the liability to indemnify the insured owner. 5. The specific contention of the appellant is that Ext. B1 policy is not an 'act only' policy and in troth it is a package policy and therefore, the Tribunal has committed an error in exonerating the insurer from indemnifying the -4- M.A.C.A. No.339 of 2010 insured owner. The learned counsel appearing for the appellant handed over a copy of Ext. B1 policy. It would reveal that the policy in respect of the vehicle in question is a package policy. The fact that Ext. B1 is a package policy is not in dispute. In such circumstances, in order to consider the question whether the insurer is liable to indemnify the insured owner of the vehicle, it is only appropriate to refer to the decision of the Hon'ble Apex Court in **National Insurance Company Ltd. v.** . **Balakrishnan and Another [AIR 2013 SC 473]** 6. In the said decision it was held, taking note of the relevant Circulars issued by the Insurance Regulatory and Development Authority (IRDA), that the insurer is liable to indemnify the insured owner of the offending vehicle covered by a package policy. In the light of the legal position obtained from **Balakrishnan's Case (supra)** and the factual position regarding the nature of policy M.A.C.A. No.339 of 2010 from Ext. B1 policy, the respondent Insurance Company ought not to have been exonerated from the liability to indemnify the insured owner whereas it ought to have been found liable for the same. In the said circumstances, we vacate the said finding and hold that the respondent herein viz., the insurer is liable to indemnify the insured owner of the vehicle. 7. Now, we will proceed to consider the question whether the appellant is entitled to get enhancement of compensation. On a careful scanning of the impugned judgment, we are of the view that there is substance in the contention that an upward modification of compensation is required under certain heads. 8. The nature of injuries sustained by the appellant is evident from Ext. A4 wound certificate. Going by the same, the appellant sustained the following injuries:- M.A.C.A. No.339 of 2010 -6- 1. “Contusion haematoma left pareto-temporal region 2. Abrasion over left forehead, chin, left maxilla and left foot 3. Tenderness over left wrist joint 4. Lacerated wound 6x4 cm. over left parietal eminence 5. Class III Fracture ----123--- teeth - C.T. Scan of brain was taken and it showed fracture to left temporal bone. Thin SDH(L) temporal, minimal right temporal contusion. Right sylvian fissure and basal cystemal SAH. X-ray of left shoulder showed fracture to left clavicle and X-ray of left wrist showed fracture to base of 4[th] metacarpal. ...................... Ext. A6 is the discharge summary which would show that the petitioner has SAH with left clavicular and left 4[th] metacarpal base fracture. he has also got lacerated wound of 6x4 cm over left parietal eminence and multiple abrasions over M.A.C.A. No.339 of 2010 -7- face and extremities and injury to upper left 2[nd] and 3[rd] teeth”. 9. Going by the nature of the injuries, we are of the view that the period of loss of earnings ought to have been fixed as four months. The appellant is also having grievance with respect to the monthly income for calculation purpose. In the claim petition it was averred that the appellant was a Coolie and was earning Rs. 4,500/- per month. However, the Tribunal had declined to accept the said contention due to the absence of evidence to establish the averments regarding occupation and income. The accident had occurred on 27-8-2004 and the appellant was then aged 30 years. Taking into account the aforesaid aspects, we are of the view that there is no reason to disbelieve the claim of the petitioner/appellant regarding the monthly income especially in the light of the decision of the Apex Court in **Ramachandrappa v. Royal Sundaram Alliance** -8- M.A.C.A. No.339 of 2010 **Insurance Co. Ltd. [(2011) 13 SCC 236]** wherein, in respect of a collie who met with an accident in the year 2004 an amount of Rs. 4,500/- was fixed as his notional income. In such circumstances, the appellant is entitled to get an amount of **Rs. 10,500/-** additionally towards loss of earnings. Towards damage to clothing, we are inclined to grant an amount of Rs. **750/-** more. Towards attendant charges, the Tribunal has granted an amount of Rs. 1000/-. The appellant had been an inpatient for 8 days. At the rate of Rs. 200/- per day, the appellant is entitled to get an amount of Rs. 1600/- towards re-reimbursement of expenses incurred under that head. After deducting the amount already granted by the Tribunal the appellant is entitled to get an amount of **Rs. 600/-** additionally. Towards pain and suffering, the Tribunal has granted an amount of Rs. 20,000/-. We have already adverted to the injuries sustained by the appellant. They would undoubtedly reveal that the appellant must have suffered -9- M.A.C.A. No.339 of 2010 excruciating pain due to the injuries for a long period of time. Hence, we are inclined to grant an amount of **Rs. 5000/-** more under that count. The nature of the injuries and the period would reveal that the appellant must have been deprived of enjoyment of life for some time. Hence, we are inclined to grant an amount of **Rs. 8000/-** more towards compensation for loss of amenities. In the light of the above enhancement made by us, the appellant is entitled to get a total additional compensation of **Rs. 25, 850/-.** It is awarded. The said amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The respondent/Insurance Company is directed to deposit the additional compensation as also the compensation awarded by the Tribunal on 19-09-2007 in O.P. (MV) No. 2169 of 2004, within a period of three months from the date of receipt of a copy of this judgment. We make it clear that the amount awarded under the impugned award will carry -10- M.A.C.A. No.339 of 2010 interest only at the rate of 7% as ordered by the Tribunal. While calculating the interest payable the appellant will not be entitled to get interest for a period of 731 days in terms of the order dated 3-8-2017. In the result, this appeal stands disposed of as above. There will be no order as to costs. **Sd/-C.T.RAVIKUMAR, JUDGE** **Sd/- B.SUDHEENDRA KUMAR, JUDGE** ani/al/- /true copy/ P.S. to Judge