High Court of KeralaSingle JudgePartly allowed; liability of insurer affirmed f...

T. Anil Kumar Alumoodu Veedu v. S. Sudheer and M/s Oriental Insurance Company Limited

Case / Petition Number:MACA No.1115 of 2010

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Ramakrishnan, J.
Judgment Date
2016-03-23
Court Decision / Holding
The appeal is allowed in part. The Tribunal’s exoneration of the insurer is set aside; the insurer is held liable to indemnify the insured for the risk of a pillion rider under a comprehensive/package policy, following Balakrishnan. Quantum is enhanced: four months of loss of earnings during treatment (Rs. 4,000 more to Rs. 8,000 total), increased payment for pain and suffering (Rs. 15,000), and consolidated loss of amenities amounting to Rs. 25,000 with a net addition of Rs. 14,340 after adjusting earlier awards. By-stander expenses are awarded Rs. 2,400. The total enhancement amounts to Rs. 26,000 (rounded). The insurer must pay with 9% interest from the petition date to payment, excluding 809 days of delay; three months are granted to deposit the amount. The Tribunal’s award must also be paid with interest if not already deposited; if deposited, withdrawal is permitted.
Final Disposition
Partly allowed; liability of insurer affirmed for pillion rider; quantum enhancements and interest awarded; modified award to be paid within three months.

Parties to the Case

Appellants / Petitioners

  • T. Anil Kumar Alumoodu Veedu, Irumba, Aruvikkara (PO), Nedumangadu, Thiruvananthapuram

Respondents

  • S. Sudheer
  • M/s Oriental Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri Nagaraj Narayan
  • • Sri Saijo Hassan
  • • Sri Prathap Pillai
  • • Sri A.S. Sabu
  • • Sri Rajan Velloth
  • • Sri Rafeeq V.K.
  • • Sri Benoji C Augustine

Counsels for Respondents

  • • Sri P. Jacob Mathew

Case Synopsis & Summary

On 2 July 2001, the claimant sustained injuries as a pillion rider on motorcycle KL-01/R-6258 driven by the first respondent and insured by the second respondent. The accident occurred around 8:30 am; the claimant, aged 28, who conducted a furniture business, claimed a monthly income of Rs. 5,000. The Motor Accidents Claims Tribunal, Attingal, assessed liability and awarded Rs. 27,485 under various heads including loss of earnings, transport to hospital, medical expenses, and pain and suffering, with subsequent heads for disability and loss of amenities. The insurance company contested liability, asserting no negligence by the rider and that pillion passengers are not covered under the policy; they also alleged lack of a valid driving license and incorrect claimant particulars. The Tribunal later reviewed the award on 22.07.2008 and exonerated the insurer. The claimant challenged this order in MACA. The Kerala High Court, relying on Supreme Court guidance in Balakrishnan, held that indemnity coverage extends to pillion riders under comprehensive/package policies, overturning the Tribunal’s exoneration. On quantum, although the insured’s monthly income was not conclusively proved at Rs. 5,000, the court found the injuries warranted higher compensation: four months’ loss of earnings during treatment, enhanced pain and suffering, and a consolidated award for loss of amenities given the молодой age and severity of disability. The court increased the total compensation by Rs. 26,000 with 9% interest, directing payment by the insurer within three months.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Insurance Company is liable to indemnify the insured for a pillion rider under a comprehensive or package policy, contrary to the Tribunal’s exoneration. He relies on the Supreme Court’s Balakrishnan decision and Tariff Advisory Committee recommendations to argue that coverage extends to passengers/pillion riders. The claimant asserts negligence by the motorcycle rider and supports quantum claims for loss of earnings during treatment, medical expenses, transport, and pain and suffering, arguing the trial court undervalued the disability and deprivation of amenities. He contends that the policy should respond to the pillion rider’s injuries and that the award should reflect higher compensation given the 24-day hospitalisation and amputation of the little toe, as well as the claimant’s age and work capacity.

Contentions of Respondents

The respondents contend that pillion passengers are not covered by the policy, and liability should not attach to the insurer. They argued that the first respondent lacked a valid driving license and that the accident arose primarily from the claimant’s negligence. The Insurance Company maintained that the award should be dismissed or substantially reduced, denying liability for the pillion rider under the comprehensive policy and challenging the alleged income and disability assessments. They also argued that the tribunal’s order of exoneration was proper based on the policy terms and Tariff Advisory Committee guidance existing at the relevant time.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
National Insurance Company v. Balakrishnan2012 (4) KLT SN 145 Case No.139PositiveSupreme Court held that insurers under comprehensive/package policies are liable to indemnify passengers/pillion riders, guiding the Kerala High Court to reject the Tribunal’s exoneration and hold the insurer liable.

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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 K.RAMAKRISHNAN** ## **WEDNESDAY, THE 23RD DAY OF MARCH 2016/ 3RD CHAITHRA, 1938** ## **MACA.No. 1115 of 2010 ( )** ## **--------------------------** **AGAINST THE ORDER DATED 22.07.2008 IN I.A.NO.1224/2008 FILED AGAINST THE AWARD IN OPMV 1319/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 05.01.2008** ## **APPELLANT/APPLICANT:** ## **-----------------------------------** ## **T.D.ANIL KUMAR ALUMOODU VEEDU, IRUMBA, ARUVIKKARA (PO), NEDUMANGADU, THIRUVANANTHAPURAM.** ## **BY ADVS. SRI.NAGARAJ NARAYANAN** **SRI.SAIJO HASSAN SRI.PRATHAP PILLAI SRI.A.S.SABU SRI.RAJAN VELLOTH SRI.RAFEEK. V.K. SRI.BENOJ C AUGUSTIN** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------** **1. S.SUDHEER, S.A.NIVAS HOUSE NO.111/47 IRUMBA, ARUVIKKARA (PO), NEDUMANGADU, THIRUVANANTHAPURAM.** **2. M/S. ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE NO.II. ST. MARY VILLA, ULOOR, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM.** **R2 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JV** ## **K. RAMAKRISHNAN, J. ------------------------------M.A.C.A.No.1115 of 2010 ---------------------------------------------Dated this the 23[rd] day of March, 2016** ## **JUDGMENT** The claimant in O.P.(M.V.)No.1319/2001 on the file of the Motor Accidents Claims Tribunal, Attingal is the appellant herein. The claim petitioner filed the application for compensation for the personal injuries sustained by him in a motor vehicle accident occurred on 02.07.2001. According to the claimant on 02.07.2001, at about 8.30 am, while the claimant was travelling in a motor cycle bearing registration No.KL-01/R-6258 as a pillion rider, owned and driven by the first respondent and insured by the 2[nd] respondent and when it reached the place of occurrence, the first respondent sweared the vehicle in a negligent manner due to which he was thrown off from the vehicle and sustained injuries. He was aged 28 years doing business in furniture and getting a monthly income of Rs.5,000/- per month. He claimed a total compensation of **MACA No.1115/2010** **2** Rupees One lakh on various heads. 2. The first respondent remained absent. The 2[nd] respondent entered appearance and filed counter statement admitting insurance of the vehicle. But they did not admit their liability to compensate the petitioner. They have further contended that there was no negligence on the part of the first respondent. It was due to the negligence of the petitioner that the accident occurred. They also contended that the first respondent has no valid driving licence to drive the vehicle. They also contended that the age, occupation, income, etc claimed by the petitioner is not correct and also the total compensation claimed is exorbitant and they prayed for dismissal of the application. 3. PWs. 1 and 2 were examined and Exts.A1 to A12 were marked on the side of the petitioner. No oral evidence was adduced on the side of the respondent . But, Ext.B1 is marked on the side of the 2[nd] respondent. 4. After considering the evidence on record, the court below found that the accident occurred due to the **MACA No.1115/2010** **3** negligent driving of the motor cycle by the first respondent and awarded a total compensation of Rs.27,485/- on various heads is as follows: ## - Part I |a)|Loss of Earning|Rs. 4000/-| |---|---|---| |b)|Partial loss of earning|Nil| |c)|Transport to hospital|Rs. 1000/-| |d)|Extra nourishment|Rs. 500/-| |e)|Damages to clothing and|| ||Articles|Rs. 250/-| |f)|Others - Bystander expenses|Nil| |g)|Medical expenses|Rs. 1075/-| ## - Part II - h) Compensation for pain and suffering Rs. 10000/- - i) Compensation of continuing of permanent disability Rs. 8160/[Rs.2000x12x17x2/100] - j) Compensation for loss of amenities in life Rs. 2500/-------------------- - Total Rs.27485/======== The court below directed respondents 1 and 2 to pay the **MACA No.1115/2010** **4** amount jointly and severally and directed the 2[nd] respondent to deposit the amount by the award dated 05.01.2008. Thereafter, the 2[nd] respondent filed I.A.No.1224/2008 for review the award on the ground that the pillion rider is not covered as per the policy and as per the order dated 22.07.2008, the Tribunal allowed the review application and exonerated the insurance company from paying the amount and made the first respondent alone to pay the amount. Dissatisfied with the modified award and also quantum of compensation awarded, the above appeal has been preferred by the claimant. 5. Heard Sri Vishnu Bhuvanachandran, counsel representing Sri Nagaraj Narayanan, counsel for the appellant and Sri Jacob Mathew, counsel appearing for the 2[nd] respondent and notice to the first respondent is dispensed with by a separate order today. 6. As regards the liability of the insurance company is concerned, at the time when the review application was filed, the law then stood was that even if the vehicle was **MACA No.1115/2010** **5** covered by a comprehensive policy, the liability of the pillion rider is not covered unless additional premium is collected from the insured. It was on that basis that the Tribunal had by the modified award exonerated the insurance company from payment of the amount. But later, in the decision reported in **National Insurance Company v. Balakrishnan [2012 (4) KLT SN 145 Case No.139]** , the Supreme Court has held that in view of the recommendations of the Tariff Advisory Committee, the insurance company is liable to indemnify the insured in respect of risk of passengers/pillion rider in a car/motor cycle in the case of an comprehensive/package policy. So in view of authoritative pronouncement of the Supreme Court on this aspect, the finding of the Tribunal that insurance company is not liable to indemnify the insured for the risk of passenger carried in the motor cycle as a pillion rider is unsustainable in law and the same is liable to be set aside. So the finding of the court below to that extent is set aside and insurance company is liable to indemnify the insured **MACA No.1115/2010** **6** for the risk of passenger carried in the motor cycle as a pillion rider as the vehicle is insured with a comprehensive / package policy. 7. As regards the quantum of compensation is concerned, though PW-1 was examined he had not produced any document to prove that he is getting Rs.5,000/- per month from his business. The court below had correctly took the monthly income of the injured as Rs.2,000/- per month. It is seen from Ext.A4 treatment certificate, Ext.A6 OP Ticket from Medical College Hospital, Thiruvananthapuram, Ext.A7 discharge slip from Government Hospital, Peroor Kada and Exts.A8 to A10 that he sustained near amputation of right little toe and suspected fracture to first phalanx and he was treated as in patient from 03.07.2001 to 26.07.2001 and the right little toe at proximal inter phalangeal joints level was amputated. Ext.A11 disability certificate shows that he is having 2% disability. The court below had only awarded two months' income as loss of earnings during the period of treatment. **MACA No.1115/2010** **7** Considering the nature of injuries sustained and also considering the fact that he was treated as in patient for 24 days, he could not have attended his work for at least four months and he is entitled to get compensation during that period. So I am inclined to enhance the compensation to Rs.8,000/- taking the treatment period as four months and award Rs.8,000/- under the head 'loss of earnings' during the period of treatment and deducting Rs.4,000/- awarded by the Tribunal, he will be entitled to an additional amount of Rs.4,000/- more under this head. 8. The Tribunal has awarded only Rs.10,000/- under the head 'payment and suffering'. Considering the nature of injuries sustained and the treatment undergone, the amount awarded appears to be on the lower side and the same is enhanced to Rs.15,000/- thereby he is entitled to get an additional amount of Rs.5,000/- under this head. 9. The Tribunal has taken 2% disability and awarded an amount of Rs.8,160/- under the head 'loss of earning capacity' and another amount of Rs.2,500/- under the head **MACA No.1115/2010** **8** 'loss of amenities in life'. Considering the nature of disability, there is no possibility of any disability being caused affecting the earning capacity of the injured. But even in cases where the disability did not affect his earning capacity, it may have some impact on his personal life and also cause inconvenience in his life. Being amputation of little toe at the right leg, it may cause disfiguration to his leg. Further, he was aged only 28 years at that time. So, instead of awarding compensation under the head 'loss of earning capacity' and also further amount under 'loss of amenities in life' as done by the court below, this Court feels that a consolidated amount can be awarded under the head 'loss of amenities in life' on account of the disability suffered by him, considering his age and nature of injuries sustained and disability caused. So a consolidated amount of Rs.25,000/- is awarded under the head 'loss of amenities in life' and deducting Rs.10,660/- awarded by the Tribunal under both heads 'loss of earning capacity' and 'loss of amenities in life', he will be entitled to get an additional **MACA No.1115/2010** **9** amount of Rs.14,340/- under this head. 10. Further, no amount was awarded under the head 'by-stander's expense' though he was treated as in-patient for 24 days. So, an amount of Rs.2,400/- is awarded under the head. 11. Though the counsel for the appellant vehemently argued for enhancement on other heads, this Court is not inclined to enhance the same as the Tribunal has awarded just and proper compensation on other heads. 12. In all, the appellant will be entitled to get an additional compensation of Rs.25,740/-, which can be rounded to Rs.26,000/-, which, the 2[nd] respondent insurance company is liable to pay with 9% interest from the date of petition till payment excluding the period of delay of 809 days in filing the appeal as ordered by this Court in C.M.Appl. No.1410/2010 dated 26.05.2015. The insurance company is directed to pay the amount awarded by the Tribunal also with interest as directed by the Tribunal if not already deposited. If the amount is deposited, the **MACA No.1115/2010** **10** petitioner is permitted to withdraw the amount. Three months' time is granted to the insurance company to deposit the amount. With the above modification of the impugned award passed by the Tribunal, the appeal is allowed in part and disposed of accordingly. SD/- **K. RAMAKRISHNAN, JUDGE** JV