High Court of KeralaSingle JudgeAppeal partly allowed; insurer liable; compensa...

Sasidharan v. K.N. Jayan, Suresh Babu K.K., National Insurance Co. Ltd.

Case / Petition Number:MACA NO. 1673 OF 2009

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2021-08-25
Court Decision / Holding
Appeal partly allowed. The High Court held that the insurer cannot be exonerated in light of Balakrishnan and that the 3rd respondent is liable to pay compensation. The compensation amount of Rs. 47,600 stands confirmed, but with interest at 7% per annum from the date of petition until deposit, after deducting 356 days (delay in filing the appeal), and costs of Rs. 3,000. The insurer is directed to deposit Rs. 47,600 with interest and costs within sixty days from receipt of a certified copy of the judgment, and the Tribunal is to disburse the amount to the appellant in accordance with law.
Final Disposition
Appeal partly allowed; insurer liable; compensation Rs. 47,600 with interest at 7% per annum from the petition date and costs; deposit to be made within 60 days; Tribunal to disburse in due course.

Parties to the Case

Appellants / Petitioners

  • Sasidharan, s/o Balan Nair, Thekkoot House, Kizhuthani Desom, Karalam Village, Mukundapuram Taluk

Respondents

  • K.N. Jayan
  • Suresh Babu K.K.
  • National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. V. Binoy Ram

Counsels for Respondents

  • • Sri. Lal George

Case Synopsis & Summary

This is a motor accident claims appeal from a 2001 accident on the Irinjalakuda–Kattoor road, where Sasidharan, the appellant and pillion rider on a motorcycle driven by the second respondent, sustained a left forearm fracture and other injuries. The Motor Accidents Claims Tribunal at Irinjalakuda awarded a compensation of Rs. 47,600, exonerating the insurer (3rd respondent) on the ground that the policy was a ‘B’ policy not covering pillion riders. The insurer, however, was challenged for exoneration, and the appellant argued that with the policy being a package policy, pillion riders are covered and that recent Supreme Court authority (Balakrishnan) makes the insurer liable. The Tribunal’s reliance on United Indian Insurance Co. Ltd. v. Thilak Singh to exonerate the insurer is criticised in light of Balakrishnan, which the High Court treats as the controlling law. Regarding damages, the appellant pointed to Ext. A5 showing 15% permanent disability; however, the court noted that mere disability certificates are not conclusive evidence of disability and that medical examination or a board’s assessment is required. The High Court thus set aside the Tribunal’s exoneration, but upheld the quantum of Rs. 47,600, directing payment with 7% interest from the petition date and costs, and ordered deposit within 60 days with disbursement by the Tribunal.”

Legal Doctrines & Maxims

  • res integra
  • disability certificate alone is insufficient to prove permanent disability; must be examined by doctor or medical board

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submits that the insurer’s exoneration is erroneous and contrary to settled law, especially National Insurance Co. Ltd. v. Balakrishnan (AIR 2013 SC 473), which holds insurer liability to pillion riders under a package policy. Relying on the 2006 decision United Indian Insurance Co. Ltd. v. Thilak Singh (2006 (2) KLT 884), the Tribunal exonerated the 3rd respondent; however, Balakrishnan has since clarified the position, rendering the earlier view no longer good law and making insurer liable. On quantum, the appellant points to Ext. A5 showing 15% permanent disability and argues that compensation should be guided by disability evidence. Though the appellant admits that no doctor who issued Ext. A5 was examined, the disability certificate, if proven, warrants consideration. The appellant also cites the evidence of earnings to support a higher award, contending for a reassessment of damages within the relevant legal framework.

Contentions of Respondents

The insurer contends that the policy is a ‘B’ policy excluding pillion riders; thus liability lies on the insured, not the insurer, and exoneration is proper. It relies on the policy terms and early jurisprudence (including Thilak Singh) to argue that pillion rider coverage is not automatic. The insurer also argues that disability was not proved through proper medical evaluation in accordance with Raj Kumar v. Ajay Kumar, and thus the Tribunal’s quantification based on that evidence is not warranted. It seeks to maintain the Tribunal’s compensation figure or propose a lesser amount, noting the lapse of time since the accident and the absence of conclusive disability proof.”},

Cited Precedents (3)

Case NameCitationTreatmentExplanation
United Indian Insurance Co. Ltd. v. Thilak Singh2006 (2) KLT 884OverruledBalakrishnan (AIR 2013 SC 473) clarified the law on insurer liability to pillion riders, rendering the Thilak Singh approach obsolete.
National Insurance Co. Ltd. v Balakrishnan and othersAIR 2013 SC 473PositiveControlling authority establishing that insurer liability extends to pillion riders under a package policy.
Raj Kumar v. Ajay Kumar2011(1) KLT 620 SCPositiveSC held that mere production of a disability certificate is insufficient; medical examination or medical board assessment is required to prove permanent disability.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943** **MACA NO. 1673 OF 2009** **AGAINST THE JUDGMENT DATED 28.02.2008 IN OPMV 1368/2001 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER:** **SASIDHARAN, S/O BALAN NAIR, THEKKOOT HOUSE, KIZHUTHANI DESOM,, KARALAM VILLAGE, MUKUNDAPURAM TALUK.** **BY ADV SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** |**1**|**K.N.JAYAN, S/O K.K.NARAYANAN**| |---|---| ||**KUMBALAPARAMBIL HOUSE, EDATHURUTHY P.O.,**| ||**THRISSUR DISTRICT.**| |**2**|**SURESH BABU K.K. S/O.KUNJAN**| ||**KOOTHUPALAKKAL HOUSE, KIZHUTHANI,**| ||**THRISSUR DISTRICT.**| |**3**|**NATIONAL INSURANCE CO.LTD.**| ||**P.B.NO.70, MALIACKAL BUILDING,, MAIN ROAD, IRINJALAKUDA.**| **BY ADV LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1673 OF 2009 2** Dated this the 25th day of August,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1368/2001 on the file of the Motor Accidents Claims Tribunal,Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 24.07.2001, while the appellant was travelling as pillion on a motorcycle bearing registration No. KL 8/E 5286 driven by the 2[nd] respondent through the Irinjalakuda-Kattoor Public Road, the 2[nd] respondent all of a sudden applied brake in a very rash and negligent manner on seeing a dog cutting across the road. Due to the said act, the appellant fell and sustained bodily injuries, including a compound fracture on his left forearm. The appellant was working as a salesman in a ration shop and earning a monthly income of Rs.3000/-. The appellant ## **MACA NO. 1673 OF 2009 3** underwent inpatient treatment at Government Hospital, Irinjalakuda and, thereafter, at the Elite Mission Hospital, Thrissur, for a period of nine days. A POP cast was applied on his left forearm. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the motorcycle. Hence, the appellant claimed an amount of Rs.1,78,000/- from the respondents, which was limited to Rs.1,25,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set _ex parte_ . 4. The third respondent filed a written statement, admitting the insurance coverage of the motorcycle, but contended that the insurance policy was only a 'B' policy, which does not cover the risk of the pillion riders. The 3[rd] respondent prayed that it may be exonerated. 5. The appellant produced and marked Exts.A1 to A9 evidence. The 3[rd] respondent produced Ext. B1 ## **MACA NO. 1673 OF 2009 4** copy of insurance policy certificate and marked it in evidence. 6. The Tribunal, after analysing the pleadings and materials on record and relying on the decision of the Honourable Supreme Court in **United Indian Insurance Company Ltd vs. Thilak Singh** _[2006 (2) KLT 884]_ , exonerated the 3[rd] respondent/insurer of its liability and directed the respondents 1 and 2 to pay the appellant an amount of Rs.47,600/- as compensation with interest and cost. 7. Aggrieved by the exoneration of the 3[rd] respondent/insurer and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Siddarthan the learned counsel appearing for the appellant/petitioner and Sri.Lal George the learned counsel appearing for the third respondent/insurer. ## **MACA NO. 1673 OF 2009 5** 9. The questions that arise for consideration in the appeal are: - _(i) whether the exoneration of the 3[rd] respondent/insurer is correct or not ?_ - _(ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just?_ 10. It is undisputed that Exhibit B1 Insurance Policy is a package policy. It is also on record that the appellant was a pillion rider on the motorcycle that was ridden by the 2[nd] respondent. 11. The law with respect to the liability of the insurer to pay compensation to pillion riders on two wheelers is no longer _res integra_ in light of the decision of the Honourable Supreme Court in **National Insurance Company Ltd. v. Balakrishnan and others** _[AIR (2013) SC 473]._ In the light of the categoric declaration of law in the afore cited decision, **MACA NO. 1673 OF 2009 6** I have no doubt in my mind that the exoneration of the 3[rd] respondent is erroneous and wrong. Hence, I set aside the finding of the Tribunal that the 3[rd] respondent is not liable to pay compensation and I hold that it is the 3[rd] respondent who is liable to pay the compensation. 12. The next question is whether the quantum of compensation fixed by the Tribunal is reasonable and just? 13. The pivotal contention of the learned counsel for the appellant is that as per Exhibit A5 disability certificate that was produced before the Tribunal, it is seen that the appellant had sustained a permanent disability of 15%. Therefore, the Tribunal ought to have awarded compensation based on Exhibit A5. 14. In **Raj Kumar v. Ajay Kumar** _[2011(1) KLT 620 SC]_ , the Honourable Supreme Court has categorically held that the mere production of ## **MACA NO. 1673 OF 2009 7** disability certificate is insufficient to prove the permanent disability of an injured claimant. It is the bounden duty of the injured to either examine the doctor who issued the disability certificate or get the disability assessed by the duly constituted medical board. 15. In the instant case, the appellant has not examined the doctor who issued Exhibit A5 disability certificate. Therefore, there is no material on record to substantiate that the appellant has sustained any disability in order to award compensation for loss due to disability. Hence, I confirm the finding of the Tribunal that the appellant has failed to prove his disability. 16. With regard to compensation that has been awarded by the Tribunal, based on facts and materials on record, I do not find any reason to enhance the compensation especially taking note of the fact that the ## **MACA NO. 1673 OF 2009 8** accident occurred in the year 2001. Likewise, even though the appellant has claimed that he was getting a monthly income of Rs.3000/-, the Tribunal has fixed his monthly income at Rs.3600/- based Exhibit A7 salary certificate. There is no error or illegality in the fixation of compensation by the Tribunal at Rs.47,600/-, which I do confirm. In the result, the appeal is allowed in part by confirming the compensation awarded by the Tribunal Rs.47,600/-, but directing the third respondent/insurer to pay the compensation amount with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting the period of 356 days i.e., the period of delay in filing the appeal and as ordered by this Court on 01.07.2021 in C.M.Appln. No.1914/2009, and a cost of Rs.3000/-. The third respondent shall deposit the compensation amount of Rs.47,600/- with interest and cost as mentioned above **MACA NO. 1673 OF 2009 9** before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation amount to the appellant in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm