UMMER, S/O KUNHALANKUTTY v. N.H. Hamza, P.T. Mamed Koya and The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN WEDNESDAY, THE 8TH DAY OF JUNE 2016/18TH JYAISHTA, 1938 MACA.No. 1103 of 2009 ( ) -------------------------- AGAINST THE AWARD IN OPMV 239/2004 of M.A.C.T.,KOZHIKODE DATED 08-072008 APPELLANT(S)/PETITIONER IN OPMV: ------------------------------- UMMER,S/O.KUNHALANKUTTY,AGED 46 YERS, ROSHNI HOUSE, ULLANAM NORTH,MUNDIANKAVU VIA, PARAPPANAMGADI, MALAPPURAM DISTRICT. BY ADVS.SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S)/RESPONDENTS IN OPMV: ---------------------------------- 1. N.H.HAMZA,S/O.KUNHALASSAN,EDASSERY HOUSE ULLANAM NORTH, PARAPPANAMDADI, MALAPPURAM DIST. 2. P.T.MAMED KOYA,S/O.P.O. MOOSA, PUTHIYAPURA, KUNDUNGAL, KOZHIKODE DIST. 3. THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE, CKH BUILDING, THAZHAPPALAM, TIRUR,, MALAPPURAM DISTRICT. R, BY ADV. SRI.TITUS MANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1103 of 2009 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] June, 2016** ## **JUDGMENT** ## **K. Ramakrishnan, J.** The claimant in O.P.(MV) No.1103 of 2009 on the file of the Motor Accidents Claims tribunal, Kozhikode is the appellant herein. The appellant was injured in a motor vehicle accident occurred on 25.12.2003. According to the appellant/claimant, he was traveling as a pillion rider in the motor cycle with No.KL.10/P-8572 driven by the second respondent, owned by the first respondent and insured with the third respondent and when it reached the place of occurrence, due to the negligent driving of the vehicle, it overturned causing injury to the claimant. He sustained severe injuries and disability. He was a Cooli by profession, aged 41 years at the time of accident and getting Rs.5,000/- per month. He claimed a total compensation of Rs.2,00,000/- on various heads. 2. Respondents 1 and 2 remained absent. 3. The third respondent filed written statement admitting the insurance of the vehicle involved in the accident. But according to them, the claimant being a pillion rider, the risk of such persons are not covered by the policy and they are not liable to pay compensation. MACA 1103/2009 2 They inter-alia contended that there was no negligence on the part of the second respondent and the amounts claimed under various heads are high and excessive. They prayed for dismissal of the application. 4. No oral evidence adduced on either side. Exts.A1 to A3 were produced and marked on the side of the claimant and Ext.B1 copy of the policy was produced and marked on the side of the third respondent insurance company. 5. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the vehicle by the second respondent and awarded a total compensation of Rs.32,000/- on various heads as follows: Medical bills : Rs. 8,000/Incidental charges : Rs. 3,000/Pain and suffering : Rs.10,000/Loss of amenities : Rs. 5,000/Loss of income : Rs. 5,000/Transportation : Rs. 1,000/-------------Total : Rs.32,000/======== It was held that in view of the dictum laid down by the Apex Court in the decision reported in **United India Insurance Co. Ltd. v. Tilak Singh** (2006 (2) KLT 884) the liability of pillion rider is not covered and the insurance company was exonerated from liability to pay MACA 1103/2009 3 compensation and held that the first respondent is liable to pay the amount. Dissatisfied with the quantum of compensation awarded and also the finding regarding exoneration of the insurance company, this appeal has been preferred by the claimant. 6. In view of the subsequent decision of the Apex Court in **National Insurance Company Ltd. v. Balakrishnan and others** (AIR 2013 SC 473), the liability of gratuitous passengers carried in a private car and pillion rider in a motor cycle are covered by a comprehensive policy/package policy, notice to respondents 1 and 2 is dispensed with and the appeal is admitted and heard and disposed of today itself considering the fact that the appeal is of the year 2009. 7. Heard Mrs. Archana V.C., learned counsel representing Shri K.M. Jamaludheen, learned counsel appearing for the appellant and Smt. Jinu Antony, learned counsel representing Shri Titus Mani, learned counsel appearing for the third respondent. 8. Learned counsel appearing for the appellant submitted that the tribunal has not properly discussed the nature of injury sustained, the period of treatment undergone, etc. and it is not clear from the award as to how the total compensation has been awarded. Further, the claimant was treated as inpatient for 15 days and produced medical bills for Rs.19,175/-. But without giving proper reason, the tribunal awarded only Rs.8,000/- towards medical expenses. The MACA 1103/2009 4 amount awarded under the heads pain and suffering, loss of amenities in life, loss of earnings, etc. are also on the lower side. Learned counsel also submitted that in view of the dictum laid down in the decision reported in **New India Assurance Co. Ltd. v. Hydrose** (2008 (3) KLT 778), the finding of the tribunal that the insurer has no liability to cover the risk of pillion rider carried in a motor cycle, is not correct and that finding is also liable to be set aside. 9. On the other hand, learned counsel for the third respondent insurance company submitted that the tribunal was perfectly justified in exonerating the insurance company in view of the law stood at that time and the amount awarded under various heads is just and proper. 10. It is quite unfortunate, on going through the award passed by the tribunal, it is seen that the necessary things required for assessing compensation and finding regarding negligence or exoneration of liability of the insurance company, etc. were not properly discussed in the award. The materials required for assessing compensation, how the tribunal has awarded compensation under the head loss of earning during the period of treatment, etc. were also not properly discussed in the award. 11. Since the question regarding negligence is not in dispute and also considering the fact that it is a case of overturning of the motor cycle in which the claimant was travelling as a pillion rider, the MACA 1103/2009 5 principles of res ipsa loquitur will apply unless reason for the accident has been explained by the rider of the vehicle which has not been done in this case, the tribunal was perfectly justified in coming to the conclusion that the accident occurred due to the negligent driving of the motor cycle by the second respondent. We are not going into that aspect in this appeal. 12. Ext.B1 is the copy of the policy which is a package policy/comprehensive policy. In the decision reported in **Tilak Singh's** case (2006 (2) KLT 884), it is true that the Supreme Court has held that gratuitous passengers carried in a private car or in a motor cycle are not covered even if it is a comprehensive policy. But in a subsequent decision of the Apex Court in **Balakrishnan's case** (AIR 2013 SC 473) relying on the recommendations of the Tariff Committee, it was held that the risk of pillion rider carried in a motor cycle will be covered if the policy is a comprehensive policy/package policy/B policy. In this case since it is a package policy, the risk of such persons is covered. So, the finding of the tribunal that the insurer has no liability to cover the risk of such persons is unsustainable in law and is liable to be set aside and we hold that in view of the fact that Ext.B1 is a package policy, the insurer is liable to indemnify the insured and they are liable to pay compensation to the claimant. MACA 1103/2009 6 13. As regards the compensation aspect is concerned, the claim of the claimant was that he was a cooli getting a sum of Rs.5,000/- per month at the time of accident. He has not adduced any evidence to prove this fact. The accident in this case occurred in the year 2003. Even in 1994, in the II Schedule attached to the Motor Vehicles Act, the legislature has taken the notional income of a non earning person as Rs.15,000/- per annum. Though it was expected to be reviewed from time to time and amount will have to be revised by the legislature by amending the provision, that has not been done so far. So, considering all these aspects and also considering the fact that the accident occurred in the year 2003, we feel it appropriate to fix the monthly income of the claimant as Rs.3,000/-. 14. It will be seen from Exts.A2 and A3 that he suffered left hemothorax, fracture lumbar 1 to 4 transverse process left and fracture of 11[th] and 12[th] rib left. He had underwent a surgery for chest tube left side to clear the air entry. He was admitted in Baby Memorial Hospital, Kozhikode on 25.12.2003 and discharged on 10.1.2004. So he was treated as inpatient for 14 days. It is also seen from the certificate that he was asked to review after three weeks. So considering these aspects, he could not have worked for at least four months. So he will be entitled to get an amount of Rs.12,000/- under the head loss of earning during the period of treatment instead of MACA 1103/2009 7 Rs.5,000/- awarded by the tribunal, thereby he will be entitled to get an additional amount of Rs.7,000/- under that head. 15. The claimant had produced Ext.A4 series medical bills for an amount of Rs.19,175/- the court below had only awarded Rs.8,000/- under the head medical bills as most of the bills were computed print outs. But the court below had lost sight of the fact that nowadays only computer print of the bills will be issued and that will not carry signature of person issuing the same as well. Considering the fact that he was treated as inpatient in a private hospital, the amount of Rs.19,175/- covered by Ext.A4 series bills cannot be said to be excessive. So the entire amount covered by Ext.A4 series under the head medical expenses has to be awarded under the medical expenses and we do so and so he is entitled to get an additional amount of Rs.11,175/- under the head medical expenses. 16. The tribunal has awarded only Rs.10,000/- under the head pain and suffering. Considering the nature of injury sustained including a surgery undergone by him for removal of haemothorax for air entry to the chest, it appears to be on the lower side and we enhance the same to Rs.20,000/-, whereby he will be entitled to get an additional amount of Rs.10,000/- under the head pain and suffering. The court below had awarded only Rs.5,000/- under the head loss of amenities in life. In view of the fact that he sustained fracture to lumbar 1 to 4 MACA 1103/2009 8 transverse process of left and fracture 11[th] and 12[th] ribs left with haemothorax, he may have some discomfort on account of the same. So we are inclined to enhance the amount awarded under the head loss of amenities in life to Rs.15,000/- from Rs.5,000/-, thereby the claimant will be entitled to get an additional amount of Rs.10,000/under that head. We are not inclined to enhance any amount under other heads. So the claimant is entitled to get an additional compensation of Rs.38,175/- over and above the compensation awarded by the tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till date of payment. In view of the finding that the third respondent is liable to pay the amount, they are liable to deposit the amount awarded by the tribunal also with interest as directed by the tribunal. With the above modification of the award passed by the tribunal, the appeal is allowed in part and disposed of accordingly. Parties are directed to bear their respective costs in the appeal. ## **(P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** kav/