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High Court of KeralaDivision BenchPartly allowed; the award has been modified as ...

Satheesan v. L. Sunil Kumar, Chacko Daniel & National Insurance Co. Ltd.

Case / Petition Number:MACA.No.874 of 2007

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Pius C. KuriaKose
  • A.V. Ramakrishna Pillai
Judgment Date
2012-02-27
Court Decision / Holding
Appeal allowed in part. The impugned award is modified to award an additional Rs. 43,680 to the appellant over and above the Tribunal’s award, with interest at the Tribunal rate. The 3rd respondent Insurance Company’s exoneration from liability is to stand, in light of United Insurance Co. Ltd. v. Tilak & Others, on the basis that the policy was an "act only" policy. The matter is disposed accordingly; the decision reflects recalculation of compensation for pain and suffering, loss of amenities, loss of earning, and permanent disability as set out in the judgment.
Final Disposition
Partly allowed; the award has been modified as detailed above.

Parties to the Case

Appellants / Petitioners

  • Satheesan

Respondents

  • L. Sunil Kumar
  • Chacko Daniel
  • National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. B. Suresh Kumar

Counsels for Respondents

  • • Sri. Mohan Jacob George
  • • Sri. L. P. ParvathI
  • • Sri. Reena Thomas
  • • Sri. L. Ram Mohan
  • • Sri. Sarah Salv y

Case Synopsis & Summary

Satheesan, the appellant, sustained multiple injuries when the motorcycle on which he rode as a pillion passenger collided with another vehicle in 1998. The Motor Accidents Claims Tribunal awarded Rs. 81,320 as compensation for his injuries, but the appellant challenged the quantum, contending it was inadequate. The insurer (3rd respondent) contended that the policy was an "act only" policy and did not cover pillion riders, leading the Tribunal to exonerate the insurer and direct the owner to pay. The High Court, after reviewing medical records (segmental comminuted fracture of both bones of the right leg, left clavicle, left scapula, left Bennet’s fracture, and a laceration behind the left ear), and considering the appellant’s incapacity to work, found the original award insufficient for pain and suffering, loss of amenities, loss of earning, and by-stander’s expenses. It increased pain and suffering by Rs. 7,500, added Rs. 10,000 for loss of amenities during rest, and recalculated loss of earning by assuming a monthly income of Rs. 2,500, resulting in an additional Rs. 8,000 for loss of earnings. By applying the relevant disability certificate, it added Rs. 17,280 for permanent disability and Rs. 900 for by-stander’s expenses. In total, the appellant was entitled to Rs. 43,680 more, with interest at the tribunal rate. The appeal was allowed in part, and the award modified accordingly, while the insurer’s exoneration was affirmed in light of precedents on act-only policies.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the compensation awarded by the Tribunal was inadequate and failed to properly compensate for pain and suffering, loss of amenities during rest, loss of earnings, and permanent disability. He relies on Ext. A8 salary certificate to prove income and argues that actual earnings and potential earnings must be considered. He asserts the ‘act only’ policy did not shield the insurer from liability and requests recalculation based on a higher monthly income (Rs. 2,500) and longer rest period. The appeal seeks higher compensation for pain and suffering, loss of amenities, and disability, plus interest on the enhanced amount.

Contentions of Respondents

The respondents contend the policy was an ‘act only’ policy, which does not cover pillion riders, and thus the insurer should be exonerated. They argue the Tribunal correctly directed the owner to pay the amount and that the insurer’s liability should not extend beyond the policy terms. They cite policy terms and prior Supreme Court/High Court precedents to support the insurer’s position and challenge the increased quantum for additional heads of compensation.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
United Insurance Company Ltd, Shimla v. Tilak & Others2006(2)K.L.T.884(SC)PositiveThe High Court refers to this Supreme Court decision to justify exonerating the insurer on an act-only policy; the policy extents are interpreted consistent with that precedent.

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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 PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 27TH DAY OF FEBRUARY 2012/8TH PHALGUNA 1933** ## **MACA.No. 874 of 2007 ( )** **------------------------------------OPMV.785/1999 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,PUNALUR** **APPELLANT/PETITIONER: -------------------------------------** **SATHEESAN, PANDARATHIL, OORUMADOM, PUTHOOR MURI, PUTHOOR VILLAGE.** **BY ADV. SRI.B.SURESH KUMAR** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------** **1. L.SUNIL KUMAR, AMMA VEEDU, KARIMTHOTTUVA P.O., KUNNATHOOR EAST VIA.** **2. CHACKO DANIEL, DEEP VILLA, THAZHATHU VADAKKU ENATHU, KOLLAM DIST.** **3. NATIONAL INSURANCE CO. LTD., 1ST FLOOR, UTHRADAM BUILDINGS, KOTTARAKKARA.** **R2 BY SRI.MOHAN JACOB GEORGE R2 BY SMT.P.V.PARVATHI R2 BY SMT.REENA THOMAS R2 BY SRI.L.RAM MOHAN R3 BY SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **PIUS C.KURIAKOSE &** ## **A.V.RAMAKRISHNA PILLAI, JJ.** ## **=====================** M.A.C.A. NO. 874 of 2007 ## **=====================** Dated this the 27[th] day of February 2012 ## JUDGMENT ## **Ramakrishna Pillai.J** Challenging the adequacy of compensation awarded by the Tribunal, the claimant has come up in appeal. 2. Allegedly while the appellant was riding on the pillion of a motor cycle driven by the first respondent, the vehicle met with an accident and as a result of the accident, the appellant sustained injuries. The appellant preferred a claim of Rs.2 lakhs. Against the said claim, the Tribunal has awarded Rs.81,320/- as compensation. MACA 874/2007 -2- 3. The third respondent – Insurance company raised a contention that though on the date of accident the vehicle was covered by a policy issued by them it was 'an act only policy', the benefit of which did not extent to pillion riders. Accepting the said contention, the leaned Tribunal directed the 2[nd] respondent who was the registered owner of the offending vehicle to pay the amount. The 3[rd] respondent - Insurance company was exonerated from the liability. 4. We have heard the learned counsel for the appellant and the learned counsel appearing for the 3[rd] respondent – Insurance Company. We have also perused the impugned award. 5. Medical records reveal that the appellant sustained segmental comminuted fracture to both bones of right leg, fracture to left clavicle, fracture to left scalpula, fracture to left bennets(wrist). There was a lacerated wound over the back of left pinna - cartilage deep exposing the cartilage. MACA 874/2007 -3- The appellant was hospitalised for a period of six days. 6. Towards pain and suffering, the learned Tribunal has awarded a sum of Rs.7500/- which according to the learned counsel for the appellant is low. Considering the nature and gravity of injuries, we are also of the view that the amount awarded by the learned Tribunal towards pain and suffering is on the lower side. Hence, we are awarding an additional sum of Rs.7500/- towards compensation for pain and suffering. 7. Presumably the appellant might not have been able to move out at least for a period of four months. However, the learned Tribunal has not awarded any amount for loss of amenities for the period during which the appellant was compelled to take rest. Hence, we are awarding a sum of Rs.10,000/- as compensation for loss of amenities for the period during which the appellant had taken rest. 8. According to the learned counsel for the appellant, he was a poojari in a temple earning a monthly salary of MACA 874/2007 -4- Rs.4950/-. Reliance was placed on Ext.A8 salary certificate issued by the employer of the temple to prove the income. The learned counsel for the respondent, on the other hand, would contend that Ext.A8 was not properly proved. The accident was of the year 1998. The appellant was aged 28 years at the time of the accident . Hence, it is only reasonable to presume that he might have earned at least Rs.2500/-per month by engaging himself in any profession. The learned Tribunal has awarded only Rs.2,000/- towards loss of earning for one month. Undoubtedly because of the injuries, the appellant might not have been able to do any work at least for a period of four months. When the compensation for loss of earning is recalculated reckoning the monthly income of the appellant as Rs.2500/-, he will be entitled to receive an additional sum of Rs.8,000/- for loss of earning. 9. Towards by-stander’s expenses, Rs.300/- only was awarded by the Tribunal. We are of the view that by- MACA 874/2007 -5- stander’s expenses at the rate of Rs.200/- per day could have been awarded by the Tribunal to the appellant. Thus the appellant will be entitled to receive a further sum of Rs.900/- towards by-stander’s expenses. 10. The learned Tribunal relying on Ext.A7 disability certificate awarded a sum of Rs.69,120/- as compensation for permanent disability adopting the correct multiplier and the percentage stated in Ext.A7 certificate. The residual disability of the appellant as per Ext.A7 is sixteen. When the compensation for permanent disability is recalculated fixing the monthly income of the appellant at Rs.2500/-, the appellant will be entitled to get Rs.17,280/- more towards permanent disability. 11. Thus in total the appellant is entitled to receive a sum of Rs.43,680/-(rupees forty three thousand six hundred and eighty only) as compensation over and above what was awarded by the Tribunal, which will carry interest at the MACA 874/2007 -6- rate awarded by the Tribunal. 12. The appeal is allowed in part. The impugned award shall stand modified as above. 13. The finding of the Tribunal exonerating the 3[rd] respondent Insurance company from the liability to pay the amount shall stand in the light of the decision in **United Insurance Company Ltd, Shimla v. Tilak & Others [2006(2)K.L.T.884(SC)]** as the policy issued by them (Exts.B1 & B1(a)) was 'an act only' policy. **SD/PIUS C.KURIAKOSE, JUDGE** **Sd/-** **A.V.RAMAKRISHNA PILLAI, JUDGE** **ks.** **True copy** ## **P.S.To Judge** MACA 874/2007 -7-