Shijil K.B. v. Pradeep P. & National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941** ## **MACA.No.610 OF 2009** **AGAINST THE AWARD IN OPMV 2944/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT:** **SHIJIL.K.B., S/O.BALAKRISHNAN, VIKAS, MANNAR P.O., KOZHIKODE DISTRICT.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS:** |**1**|**PRADEEP.P.,**| |---|---| ||**“PAKSASANAM”, KATTAMMAR HOUSE, TALAP P.O.,**| ||**KANNUR DISTRICT.**| |**2**|**NATIONAL INSURANCE CO. LTD.**| ||**PARCO TOWER, P.B. NO.207, P.M.TAJ ROAD,**| ||**KOZHIKODE.**| **R2 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.610 OF 2009 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2944 of 2003 on the file of the Motor Accidents Claims Tribunal, Kozhikode, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 21.07.2002, while he was travelling in a motorcycle bearing registration No.KL-13/C-6670, as pillion rider. At the place of accident, while the motorcycle was trying to overtake a lorry, it hit on the side of the lorry. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent owner-cum-rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. 2. The 2[nd] respondent/insurer filed written statement admitting insurance coverage of the offending motorcycle; however, denying the negligence alleged against the 1[st] respondent owner-cum-rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was 3 MACA No.610 OF 2009 contended that the compensation claimed is excessive. An additional written statement was also filed by the 2[nd] respondent/insurer contending that the insurer does not have liability to compensate the claimant, he being a pillion rider and the policy does not cover the risk of a pillion rider, as no additional premium was paid. 3. Before the Tribunal, Exts.A1 to A3 were marked on the side of the appellant/claimant. The policy of insurance was marked as Ext.B1 on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the motorcycle by the 1[st] respondent owner-cum-rider. The Tribunal exonerated the 2[nd] respondent insurer on the ground that, though Ext.B1 is a comprehensive policy, no additional premium was paid to cover the risk of a pillion rider. Under various heads, the Tribunal awarded a total compensation of Rs.38,000/-, and the 1[st] respondent owner-cum-rider was directed to satisfy the award, with interest at the rate of 7% 4 MACA No.610 OF 2009 per annum from the date of petition till date of deposit. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal and also the exoneration of the 2[nd] respondent/insurer, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] respondent/insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads and also whether the finding of the Tribunal exonerating the 2[nd] respondent/insurer can be sustained in law. 8. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in 5 MACA No.610 OF 2009 golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 9. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under different heads reads thus; 6 MACA No.610 OF 2009 ||The compensation claimed under<br>different heads|Amount allowed| |---|---|---| |1|Medical treatment|8,000/-| |2|Incidental charges|3,000/-| |3|Pain and suffering|12,000/-| |4|Loss of amenity|8,000/-| |5|Loss of notional income|4,500/-| |6|Transportation|500/-| ||Total claim|38,000/-| 11. The accident occurred on 21.07.2002. At the time of accident, the appellant was aged 22 years. He claimed a monthly income of Rs.2,000/- as a Collection Executive. However, no materials were produced before the Tribunal to prove his monthly income. He has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally at Rs.1,500/-, for the purpose of assessing compensation under various heads. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was 7 MACA No.610 OF 2009 working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 13. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce 8 MACA No.610 OF 2009 documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 14. In view of the law laid down by the Apex Court in the decisions referred to supra, the monthly income of Rs.2,000/claimed by the appellant cannot be said to be on a higher side. Therefore, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.2,000/-, for the purpose of assessing compensation under various heads. 15. Ext.A2 wound certificate would show that the appellant sustained multiple lacerations, abrasions, smell wound, sub conjunctival hemmorrhage and fracture on right clavicle and mandible. X-ray on pelvis was also taken. But no bony injury was revealed in the wound certificate. The appellant had undergone in-patient treatment for 9 days. Ext.A3 is the discharge summary in which it is stated that the 9 MACA No.610 OF 2009 appellant had undergone surgery for the fracture sustained to mandible and zygonia. For curing the fracture of clavicle, he was advised to wear brace and sling for 3 weeks. 16. Towards treatment expenses, the Tribunal awarded a sum of Rs.8,000/-. In the absence of any medical bills, the compensation awarded by the Tribunal under this head requires no enhancement in this appeal. 17. Towards incidental charges, the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and the in-patient treatment the appellant had undergone for 9 days, the compensation awarded by the Tribunal under this head also represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone as borne out from medical records, the compensation under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.3,000** /- (15,000-12,000). 19. Towards loss of amenities, the Tribunal awarded a 10 MACA No.610 OF 2009 sum of Rs.8,000/-. In the absence of any materials to prove any permanent disability that had arisen out of the injuries sustained in the accident, the compensation awarded under this head cannot be said to be on the lower side. 20. Towards loss of income, the Tribunal awarded a sum of Rs.4,500/- (1500x3). Considering the nature of injuries and the treatment the appellant had undergone, loss of earnings can be granted for a period of 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.2,000/-, the compensation under this head is re-fixed as Rs.8,000/- (2000x4), resulting an additional compensation of **Rs.3,500** /-. 21. Towards bystander expenses, the Tribunal has not awarded any compensation. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court deem it appropriate to grant **Rs.1,350/-** (150x9) under this head. 22. Towards extra nourishment, the Tribunal has not awarded any compensation. Considering the nature of injuries sustained and the treatment the appellant had undergone, this 11 MACA No.610 OF 2009 Court deem it appropriate to grant **Rs.900/-** (100x9) under this head. 23. In **The New India Assurance Company Ltd. v. Hydrose and others [2008 (3) KLT 778]** , a Division Bench of this Court held that as held by the Constitution Bench of the Apex Court in **New India Assurance Co. Ltd. v. Jaya [(2002) 2 SCC 278]** , merely because policy is comprehensive, the liability is not absolute for the Insurance company. 'Act Only' policy covers statutory liability. In certain comprehensive policies, apart from the statutory liability, only own damages are covered. In such circumstances, gratuitous passengers are not covered. Apart from the risk compulsorily to the coverage under the Motor Vehicles Act, coverage of other risk depends upon the terms of policy like any other commercial contract. So, there should be specific coverage as held by the Apex Court in **Amrit Lal Sood v. Kaushalya Devi Thapar [(1998) 3 SCC 744]** that it is the terms of the policy that has to be considered. 24. In **Hydrose's case (supra)** , the Division Bench noticed that the insurance policy in question is not an 'Act 12 MACA No.610 OF 2009 Only' policy. It is a “B” policy and Section II (1) (i) of the conditions attached to the policy shows that as per the terms and conditions of the policy, gratuitous occupants of the vehicle are covered. Clause (1) of Section II of the policy reads as follows: 1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of accident caused by or arising out of the use of motor cycle against all sums which the insured shall become legally liable to pay in respect of: - i) death or bodily injury to any person including person conveyed in or on the motor cycle provided such person is not carried for hire or reward. - ii) damage to property other than property belonging to the insured or held in trust by or in the custody or control of the insured or any member of the insured's household are being conveyed by the motor cycle. The Division Bench held that, clause (1) of Section II of the policy conditions clearly states that the insurer has undertaken liability in respect of death or bodily injuries to any person including a person conveyed in or on the motorcycle provided such person is not carried for hire or reward. Here no limitation of liability is mentioned in the Schedule. In fact, 13 MACA No.610 OF 2009 specific coverage is provided for the risk of gratuitous passenger as per the conditions of policy regarding the coverage of risk due to the death or bodily injury to any person, provided, the person is not carried for hire or reward. In these circumstances, the insurer has by contract agreed to indemnify the insured of the risk of gratuitous passenger in the motorcycle. In the above circumstances, the Tribunal has correctly held that insurer is liable to pay the amount. 25. The fact that, Ext.B1 insurance policy of the offending motorcycle also contains a similar condition, whereby the 2[nd] respondent has undertaken the liability in respect of death or bodily injuries to any person including a person carried on the motorcycle, provided such person is not carried for hire or reward is not in dispute. Therefore, in view of the law laid down by the Division Bench of this Court in the **Hydrose's case (supra)** , the finding of the Tribunal in the impugned award to the extent of exonerating the 2[nd] respondent insurer from the liability to pay the amount of compensation awarded to the appellant/claimant, cannot be sustained and the same is, accordingly, set aside, by holding 14 MACA No.610 OF 2009 that the 2[nd] respondent insurer is liable to pay the amount of compensation awarded to the appellant/claimant. 26. In the result, the appellant will be entitled for an additional compensation of **Rs.8,750/-** (Rupees Eight Thousand Seven Hundred and Fifty only) [3,000 + 3,500 + 1,350 + 900] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent/insurer shall satisfy the compensation of Rs.38,000/- originally awarded by the Tribunal and also the additional compensation of Rs.8,750/- granted in this appeal, together with interest, at the rate of 8% per annum for the entire compensation, from the date of petition till payment, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** **yd**