T. Krishnan v. Manoj and The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943 MACA NO. 1330 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.2125/2003 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER IN OP(MV) :** **T.KRISHNAN, S/O.MADHAVAN,AGED 48 YEARS, KIZHAKKETHAROL HOUSE, P.O.KARIYATHANKAVU,, VIA BALUSSERY, KOZHIKODE.** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** - **1 MANOJ, S/O.SREEDHARAN, AGED 36 YEARS, CHIRAKKAL ELIPARAMBATH, KODOLY HOUSE,, P.O.KUNNAMANGALAM, KOZHIKODE.** - **2 THE NATIONAL INSURANCE CO.LTD DIVISIONAL OFFICE, P.B.NO.811, NOOR COMPLEX, NEAR ARAYIDATHPALAM, MAVOOR ROAD, CALICUT.** **BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1330 of 2009 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No. 1330 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV)No.2125 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, for the determination of the appeal, are : on 22.07.2003 while the appellant was travelling as a pillion on motorcycle bearing registration No.KL 11/D 9890, the vehicle capsized due to the rash and negligent riding by the 1[st] respondent. The appellant sustained serious injuries including a right parietal extra dural haemetoma, _3_ MACA.No.1330 of 2009 fracture of the clavicle and fracture of clavicle. He was admitted in the Baby Memorial Hospital from 22.07.2003 to 25.07.2033 and 28.7.2003 to 04.08.2003 for a total period of 15 days. The appellant was a tuition teacher by profession and earning a monthly income of Rs.6,500/-. The motorcycle was insured with the 2[nd] respondent. The appellant contended that the respondents were jointly and severally liable to pay him compensation, which he quantified at Rs.3,48,000/-, but limited to Rs.2,00,000/- 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. 4. The 2[nd] respondent filed a written statement, and additional written statement denying their liability to pay the compensation. Nevertheless, the insurance coverage of the motorcycle was admitted. MACA.No.1330 of 2009 _4_ It was contended that the vehicle was covered only by an act policy, therefore, the 2[nd] respondent was not liable to pay any compensated. 5. The appellant marked Exts.A1 to A6 series in evidence. The 2[nd] respondent produced Ext.B1 insurance policy in evidence. 6. The Tribunal, allowed the claim petition, by exonerating the 2[nd] respondent from paying the compensation and directed the 1[st] respondent to pay an amount of Rs.30,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of payment as compensation. 7. Aggrieved by the exoneration of the 2[nd] respondent of its liability and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner/appellant is in appeal. 8. Heard Sri.K.M.Jamaludheen, the learned _5_ MACA.No.1330 of 2009 Counsel appearing for the appellant and Smt.Deepa George, the learned Counsel appearing for the 2[nd] respondent. 9. The questions that arise for consideration in this appeal are (i) whether the exoneration of the 2[nd] respondent to pay the compensation is justifiable or not (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. The 2[nd] respondent was exonerated on the sole ground that the vehicle was only covered by a package policy. Therefore, the insurance company is not liable to indemnify the owner for the liability caused on account of the accident because the appellant was a pillion rider. 11. The legal position with respect to the liability of the insurer is no longer _res integra_ in view of the categoric declaration of law by the Hon'ble Supreme _6_ MACA.No.1330 of 2009 Court in **National Insurance Company Limited v. Balakrishnan and another** [AIR 13 SC 473], wherein, it is held that a pillion rider is also covered in a package/comprehensive policy. Thus, I answer question No.(i) in favour of the appellant by holding that the 2[nd] respondent is liable to indemnify the liability of the 1[st] respondent to pay the compensation amount to the appellant. 12. Coming to the next question regarding the quantum of compensation awarded by the Tribunal under the different heads. 13. The appellant had claimed that he was 42 years of age at the time accident and that he was a teacher by profession earning a monthly income of Rs.6,500/-. Nevertheless, the Tribunal did not fix the notional income of the but awarded a injured, consolidated amount of Rs.30,000/-. The course MACA.No.1330 of 2009 _7_ adopted by the Tribunal is irregular and improper in view of the ratio in **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)] and a plethora of binding precedents. 14. The appellant was 42 years of age at the time of accident and he claimed he was a teacher by profession earning an income of Rs.6,500/- per month. 15. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 16. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decision I re-fix the appellant's notional income at Rs.4,000/- MACA.No.1330 of 2009 _8_ per month. ## **Loss of earnings** 17. As per Ext.A3 discharge summary it is seen that the appellant had sustained two fractures and an head injury. Therefore, it can easily be assumed that the appellant was incapacitated for a period of four months. Consequently, I fix the compensation under the head 'loss of earnings' at Rs.16,000/- (4000x4) ## **Medical expenses** 18. The appellant had produced Ext.A5 and A6 series medical bills. Nevertheless, the Tribunal on finding that there was no authentication on the bills and some of the bills were computerised, awarded only an amount of Rs.10,000/- 19. On a perusal of Ext.A6 series bills, it is seen that some of the bills were of Baby Medicals and other medical shops. One bill that drew the attention _9_ MACA.No.1330 of 2009 of this Court is the bill dated 05.08.2003 issued by the Baby Memorial Hospital, where the appellant was treated. The bill was sealed and authenticated. The total amount that was paid by the appellant is Rs.18,513/-. Therefore, I hold that the said bill can be taken into account for calculating the medical expenses of the appellant. Accordingly, I fix the medical expenses of the appellant, based on the said bill, at Rs.18,513/- i.e., an enhancement of Rs.8,513/- ## **Pain and suffering** 20. The appellant had claimed total amount of Rs.50,000/- as compensation towards 'pain and suffering'. However, the Tribunal awarded only an amount of Rs.10,000/-. 21. Taking into account the nature of injuries sustained by the appellant, that he was indisposed for a period of four months and that he was hospitalised _10_ MACA.No.1330 of 2009 for a period of 15 days in two spells, I hold that the appellant is entitled for a further amount of Rs.10,000/- under the head 'pain and sufferings'. 22. With respect to the other heads of compensation , I find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings and materials on record and the law laid in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified above i.e., a further amount of Rs.8,513/- towards the 'medical expenses', Rs.10,000/- towards compensation for 'pain and sufferings' and Rs.16,000/- towards loss of earnings', totalling to an amount of Rs.34,513/- In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of MACA.No.1330 of 2009 _11_ Rs.34,513/- with interest at the rate of 7.5% per annum from the date petition till the date of deposit, after deducting a period of 129 days i.e, the period delay in preferring the appeal and as ordered by this Court on 30.03.2021 in C.M.Appl.No.1514 of 2009, and proportionate costs. The 2[nd] respondent shall deposit the enhanced compensation before the Tribunal with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant, in accordance with law. **Sd/- C.S.DIAS, JUDGE** dlK 07.07.20210