Shine Kumar v. Shajan, Unnikrishnan P.K. and The District Insurance Officer, Kerala State Insurance Department

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939 MACA.No. 599 of 2009 ( ) ------------------------AGAINST THE AWARD IN OPMV 1284/2003 of MACT, NORTH PARAVUR DATED 20-09-2008 APPELLANT(S)/PETITIONER: ---------------------------------- SHINE KUMAR, S/O.SADANANDAN, PANIKASALAAKKAL HOUSE, I.R. VALAVU, PALLIPPURAM KARA, KUZHUPPILLY VILLAGE. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S):RESPONDENTS ------------------------------------ 1. SHAJAN, S/O.BALAN, ANJALASSERY HOUSE, I.R.VALAVU, MUNAMBAM KARA, KUZUPPILLY VILLAGE. ## 2. UNNIKRISHNAN P.K., S/O.KUMARAN, PATHIYASSERY HOUSE, CHERAI P.O. ## 3. THE DISTRICT INSURANCE OFFICER, KERALA STATE INSURANCE DEPARTMENT, ALAPPAT ROAD, RAVIPURAM, ERNAKULAM. R3 BY GOVERNMENT PLEADER SRI.SYAMJI RAM THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.599 OF 2009 ==========================** Dated this the 28[th] day of June, 2017 ## **JUDGMENT** _Anil K. Narendran, J._ This appeal arises out the award passed by the Motor Accidents Claims Tribunal, North Paravur in O.P.(MV).No.1284 of 2003, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 22.9.2003 while travelling on a motor cycle bearing Reg.No.KL-7/AH-8725 as a pillion rider, ridden and owned by respondents 1 and 2 and insured with the third respondent. At the place of accident, the motor cycle hit on a bicycle and the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent rider, claim petition was filed **M.A.C.A.599/2009** 2 before the Tribunal claiming a total compensation of Rs.3,00,000/under different heads. 2. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. A copy of the certificate of insurance was marked as Ext.B1. The appellant himself was examined as PW1. The respondents have not chosen to adduce any oral evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent rider. On a finding that Ext.B1 policy, which is a two wheeler package policy, will not cover the risk of a pillion rider since no additional premium is paid, the Tribunal absolved the third respondent insurer from the liability. Under different heads, the Tribunal awarded a total compensation of Rs.1,04,280/- and the first respondent rider and the second respondent owner were directed to deposit the said amount before the Tribunal together with interest at the rate of 7% per annum from the date of the petition till date of **M.A.C.A.599/2009** 3 realisation. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal and also challenging the exoneration of the third respondent insurer, the appellant/claimant is before this Court in this appeal. 5. We heard the learned counsel for the appellant/claimant and the learned Government Pleader. 6. In **Francis K.T. v. Sabu Augustine and another [2015 (5)** **KHC 320]** , a Division Bench of this Court held that when policy is a Standard Motor Package Policy or Comprehensive Policy, it should cover a pillion rider as well and as such the insurer is liable to pay compensation. The said decision was rendered by this Court after referring to the circulars issued by the Insurance Regulatory and Development Authority (IRDA) and also the law laid down by the Apex Court in **National Insurance Company Limited v. Balakrishnan and another [(2013) 1 SCC 731]** wherein the Apex Court held that a Standard Package Policy/Comprehensive Policy in **M.A.C.A.599/2009** 4 respect of a private car/two wheeler should cover the risk of occupants in a private car/pillion rider of the two wheeler as well. In view of the law laid down as above, the impugned award of the Tribunal exonerating the third respondent insurer from the liability to indemnify the second respondent owner cannot be sustained and the same is hereby set aside. In the result, the third respondent insurer is held liable to indemnify the second respondent owner. 7. Now, we shall deal with the quantum of compensation. The accident is of the year 2003 and at the time of the accident, the appellant/claimant was aged 39 years. He claimed a monthly income of Rs.5,000/- as a fish vendor. Other than the oral testimony of the appellant/claimant as PW1, no reliable materials were produced before the Tribunal to prove his monthly income at the time of the accident. It was in such circumstances that the Tribunal fixed the monthly income of the appellant/claimant notionally at Rs.2,000/-. Considering the fact that the accident is of the year 2003 and at the time of the accident, the appellant/claimant was an able bodied person **M.A.C.A.599/2009** 5 aged 39 years, we deem it appropriate to re-fix his monthly income notionally at Rs.4,000/-. 8. The injuries sustained by the appellant in the accident, as borne out from Ext.A3 wound certificate, read thus:- “Commutated fracture, tibial plafond with bimalleolar fracture.” As a result of the injuries sustained in the accident, the appellant/claimant had undergone inpatient treatment from 22.9.2003 to 8.10.2003 and thereafter, from 30.1.2004 to 1.1.2004 for a total period of 17 days. The medical records would indicate that the appellant/claimant was treated with wound debridement, bone grafting etc. 9. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000/- at the rate of Rs.2,000/- for four months. In Ext.A6 disability certificate, permanent disability sustained by the appellant/claimant due to the injuries sustained in the accident has been certified as 17%, which has been accepted by the Tribunal. **M.A.C.A.599/2009** 6 Considering the nature of the injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we find no reason to interfere with the four months period reckoned by the Tribunal for loss of earning. Since we have already re-fixed the monthly income of the appellant/claimant at Rs.4,000/-, the compensation payable under this head comes to Rs.16,000/- (4000x4), resulting an additional compensation of **Rs.8,000/-** . 10. Due to the injuries sustained in the accident, the appellant/claimant had undergone inpatient treatment for a period of 17 days. However, no amount was awarded by the Tribunal under the heads 'bystanders expenses' and 'extra nourishment'. Considering the fact that the accident is of the year 2003, we deem it appropriate to grant **Rs.2,550/-** (150x17) and **Rs.1,700/-** (100x17) respectively under these heads. 11. Towards damage to clothing, no amount was granted by the Tribunal. Considering the fact that the accident is of the year 2003, we deem it appropriate to grant a sum of **Rs.750/-** under this head. **M.A.C.A.599/2009** 7 12. Towards pain and suffering, the Tribunal awarded a sum of Rs.18,000/-. Considering the nature of the injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, we deem it appropriate to grant a sum of Rs.25,000/- under this head, resulting an additional compensation of **Rs.7,000/-** . 13. Towards loss of amenities, the Tribunal awarded a sum of Rs.10,000/-. Considering the fact that the appellant had sustained a permanent disability of 17%, as certified in Ext.A6 certificate, the compensation payable under this head is re-fixed as Rs.30,000/resulting an additional compensation of **Rs.20,000/-** . 14. Towards disability compensation, the Tribunal awarded a sum of Rs.65,280/- reckoning the monthly income as Rs.2,000/-, percentage of disability as 17% and applying the multiplier of '16'. In view of the judgment of the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802],** the proper multiplier applicable to the age group of 36-40 years is 15. Since we have already re-fixed the monthly income of the appellant notionally at **M.A.C.A.599/2009** 8 Rs.4,000/-, applying a multiplier of '15' and the percentage of disability of 17%, the compensation payable under this head is reworked as Rs.1,22,400/-(4000x12x15x17/100) resulting an additional compensation of **Rs.57,120/-** . 15. Towards medical expenses, the appellant claimed a sum of Rs.58,199/-. However, the Tribunal, without accepting the medical bills, awarded a nominal amount of Rs.3,000/-. Ext.A7 document would show that it is only a certificate issued by the hospital concerned certifying that in connection with the accident, the approximate treatment expenses are Rs.58,199/-. A bare perusal of Ext.A7 certificate would show that such a document cannot be the basis for awarding compensation under the head medical expenses. Therefore, the said document was rightly rejected by the Tribunal while awarding a nominal amount of Rs.3,000/-. However, considering the nature of the injuries sustained and the treatment the appellant had under gone, as borne out from the medical records, and also the nature of the injuries evident from Ext.A5 and Ext.A8 series **M.A.C.A.599/2009** 9 of photographs, we deem it appropriate to grant a sum of Rs.8,000/under this head resulting an additional compensation of **Rs.5,000/-** . 16. In the result, the appellant will be entitled for an additional compensation of **Rs.1,02,120/-** (8,000+2,550+1,700+ 750+7,000+20,000+57,120+5,000) in this appeal which will carry interest @ 8% per annum from the date of the petition till realisation. 17. In view of the finding in this judgment that the third respondent insurer is liable to indemnify the second respondent owner, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.599/2009** 10 **C.T. RAVIKUMAR, J.** **M.A.C.A.599/2009** 11 **JUDGMENT September, 2010**