Suresh Kattupparamban House v. M.J. Joy and Others (MACA No. 1937 of 2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942** ## **MACA.No.1937 OF 2008** **AGAINST THE AWARD IN OPMV 191/2002 DATED 27-02-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **SURESH KATTUPARAMBAN HOUSE, V.R.PURAM DESOM, PERAMBRA VILLAGE,, VIJAYARAGHAVAPURAM P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.BABY** ## **RESPONDENT/S:** |**1**|**M.J.JOY**| |---|---| ||**S/O.JACOB, MULANGADAN HOSUE, WEST CHALAKUDY P.O.**| |**2**|**MANAGER ORIENTAL INSURANCE CO. LTD.**| ||**CHALAKUDY.**| |**3**|**V.P.IBRAHIM**| ||**VILAKKATH HOUSE, PERUMATTOM, PUTHUPPADY P.O.,**| ||**MUVATTUPUZHA.**| |**4**|**MANAGER ORIENTAL INSURANCE CO. LTD.**| ||**MARKET ROAD, MUVATTUPUZHA.**| ||**R1 BY ADV. SRI.P.JAYASANKAR**| ||**R4 BY ADV. SRI.N.S.NAJEEB**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A. No. 1937 of 2008** **2** ## **P.V.KUNHIKRISHNAN, J** **---------------------------------M.A.C.A. No. 1937 of 2008** **-------------------------------Dated this the 25[th] day of February, 2021** ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.) No. 191/2002 on the file of the Motor Accidents Claims Tribunal. This appeal is filed challenging the quantum of compensation and exoneration of the insurance company from paying the liability. 2. The brief facts are as follows : On 1.8.2001, the appellant sustained injuries in a motor accident. He was the pillion rider of the motor cycle bearing registration No.KL-8/S 7650, the driver of which was the 1st respondent. The 1st respondent is also the owner of the motor cycle and the 2nd respondent is the insurer. The case of the appellant is that due to rash and negligence of the 1 st respondent, he lost control over the motor cycle while overtaking another vehicle carelessly and at that time, it happened to hit on another goods vehicle bearing No. KL-7/R 9232. The appellant contended that the 3rd respondent is the **M.A.C.A. No. 1937 of 2008** **3** owner of the said goods vehicle and the 4th respondent is the insurer of the goods vehicle. The appellant claims compensation from respondents Nos. 1 and 2 alleging that the accident occurred due to the rashness and negligence on part of the 1st respondent. The Tribunal framed the following issues : 1. Who is responsible for the accident ? 2. What, if any, is the quantum of compensation the petitioner is entitled to get? 3. Who is liable to pay compensation ? 4. Reliefs and costs. 3. To substantiate the case, two witnesses were examined on side of the appellant/claimant as PW1 and PW2. Exts. A1 to A14 are the exhibits marked on side of the appellants. Two documents were marked on side of the respondents as Exts.B1 and B2. After going through the evidence and the documents, the Tribunal passed an award by which the petitioner is allowed to realise compensation of Rs.50,400/- from the 1st respondent with interest at the rate of 7% from the date of the petition till realisation and also proportionate costs. The Insurance Company is exonerated from the liability for **M.A.C.A. No. 1937 of 2008** **4** the reason that the policy issued by the Insurance Company is an 'Act policy' which does not cover the risk of pillion rider. 4. Heard counsel for the appellant and counsel for the respondents. 5. The counsel for the appellant submitted that in the light of the decision of the Apex Court in **National Insurance Company Ltd.** v. **Balakrishnan and anr.** [AIR 2013 SC 473], the exoneration of the Insurance Company alleging that it was only an “act Policy” is not sustainable. The counsel submitted that as far as the quantum of compensation awarded is concerned, it is on a lower side. The counsel submitted that the notional income fixed by the Tribunal is only Rs. 2,000/-. The learned counsel relied on the judgment of the Apex Court in **Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited** [AIR 2011 SC 2951]. The counsel submitted that he prayed to fix the notional income only as Rs.3,000/-. According to the appellant, he was a salesman in a chicken shop. The counsel submitted that even a coolie will get more than Rs.3,000/- per month and the learned Tribunal erred in fixing the notional income as Rs.2,000/-. The **M.A.C.A. No. 1937 of 2008** **5** counsel also submitted that PW1 is the doctor, who examined the appellant. The appellant sustained very serious injuries. The counsel submitted that Ext.A1 is the disability certificate in which it is stated that there is 15% neuro disability due to the loss of memory to the appellant. The counsel submitted that no amount is awarded based on his disability. The counsel also submitted that the compensation awarded for pain and sufferings is also too low. Towards loss of amenities also, the counsel submitted that the compensation awarded is too low. 6. The counsel for the respondents submitted that the Tribunal after considering the entire aspects, fixed the compensation and there is no evidence to enhance the compensation. The counsel submitted that the disability certificate is not proved in accordance to law. But the liability of the insurer is admitted by the counsel in the light of the decision in **National Insurance Company's** case (supra). 7. I perused the entire oral and documentary evidence in this case. As rightly pointed out by the learned counsel for the appellant, in the light of the decision in the **National Insurance** **M.A.C.A. No. 1937 of 2008** **6** ## **Company's** case (supra), the exoneration of the Insurance Company will not stand. The relevant portion of the judgment in **National Insurance Company's** case (supra) is extracted hereunder. : “In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing from a “Comprehensive/Package Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “Comprehensive/Package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act Policy” which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “Comprehensive/Package Policy”, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (2009 AIR SCW 5325) (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.” 8. In the light of the above, the exoneration of the Insurance Company from paying the compensation will not stand. As far as the disability is concerned, the counsel for the appellant submitted that Ext.A1 is proved through PW1, the doctor. The counsel also submitted that there is oral evidence of the appellant also. He also gave evidence as PW2. In the light of the evidence of PW1 and PW2 coupled with Ext.A1, according to me, the disability is proved and **M.A.C.A. No. 1937 of 2008** **7** the Tribunal erred in denying any compensation for the disability of the appellant. I perused Ext.A1 disability certificate and the evidence of PW1 and PW2. It cannot be said that Ext.A1 is not proved in accordance to law. But after going through the oral evidence of PW1 and PW2 along with Ext.A1 disability certificate, I am of the opinion that the fixation of the disability as 15% cannot be accepted. The inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. In **Pappu Deo Yadav** v. **Naresh Kumar and others** [AIR 2020 SC 4424], the Apex Court observed that in assessing motor vehicle compensation claims, duty of the court is to place the victim in as near a position as she or he was in before the accident. Keeping in mind the above principle and in the facts and circumstances of the case, according to me, the disability sustained can be fixed at 7%. If that is the case, the appellant is entitled for enhanced compensation. Similarly, the notional income fixed by the Tribunal cannot be accepted. In the light of the decision of the Apex Court in **Ramachandrappa's** case(supra), according to me, the notional income can be fixed as Rs.3,000/-. Based on this notional income, the appellant is entitled Rs.12,000/- for loss of earning. An amount of Rs.8,000/- already given in the above is to be deducted. Similarly, the amount awarded by the Tribunal for the pain and sufferings is only Rs.12,000/-. According to me, in the facts and circumstances of **M.A.C.A. No. 1937 of 2008** **8** this case, it can be increased to Rs.15,000/-. Similarly, loss of amenities, it can be increased to Rs.10,000/-. If that is the case, the enhanced amount will be in the following manner : |**Sl.**<br>**No.**|**Head**|**Amount**| |---|---|---| |1|Compensation<br>for<br>disability|Rs. 37,800/- (3000x12x15x7/100)| |2|Loss of Earnings|Rs.4,000/- (4x3000 = 12000-8000<br>= 4000)| |3|Pain and sufferings|Rs.3000/-| |4|Loss of amenities|Rs.3000/-| ||**Total**|Rs.47,800/-| 9. Therefore, the appeal is allowed in part. The impugned award is modified and the appellant is entitled an enhanced compensation of Rs.47,800/- from the 2nd respondent. The appellant is entitled for interest at the rate of 8% from the date of application. The original compensation awarded by the Tribunal and the enhanced compensation should be paid by the 2nd respondent, the Insurance Company. sd/- **P.V.KUNHIKRISHNAN JUDGE** SKS