Usman K.M. v. Sukumar P., K. Faizal and The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937 **MACA.No. 1795 of 2009 ( ) --------------------------** AGAINST THE AWARD IN OPMV 122/2003 of M.A.C.T., MANJERI DATED 13-05-2008 APPELLANT(S): ------------------------ USMAN K.M.,S/O.MOHAMMED, AGED 25 YEARS, KALIYANKUNNAN (H), T.K.COLONY P.O. POOKKOTTUMPADAM, MALAPPURAM DISTRICT. BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENT(S): ---------------------------* 1. SUKUMARAN P.,S/O.KEERAN, POOKKODE HOUSE, ERANHIMANGAD POST, NILAMBUR (DRIVER). _(*DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 27.03.2013 IN I.A.NO.780 OF 2013_ ) * 2. K.FAIZAL, DARUSALAM HOUSE, FAROOK COLLEGE POST, CALICUT (OWNER). _(*DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 11.09.2015 IN I.A.No.3140 OF 2015)_ 3. THE ORIENTAL INSURANCE COMPANY LTD., JASEELA COMPLEX, NILAMBUR ROAD, MANJERI (INSURER). R3 BY ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **M.A.C.A.No.1795 OF 2009** ......................................................................... **Dated this the 12[th] January, 2016** ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the claimant in O.P.(MV)No.122 of 2003 on the file of the Motor Accidents Claims Tribunal, Manjeri, an application filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor accident occurred on 02.11.2001. On the date of the accident, while the petitioner was travelling as a pillion rider in a motor cycle bearing Registration No.KL-11/J-469 owned by the second respondent. The motor cycle hit against some object, as a result of which the appellant fell down and sustained injuries. The first respondent was the rider of the motor cycle and the vehicle was insured with the third respondent. The appellant filed a claim petition before the Tribunal claiming a total compensation of Rs.3,00,000/- under different heads. 2. Before the Tribunal, Exts.A1 to 6 were marked on the side **2** ## **M.A.C.A.No.1795 OF 2009** of the appellant. A copy of the insurance policy was marked as Ext.X1 on the side of the respondents. Both the sides have not chosen to adduce any oral evidence . 3. After considering the pleadings and materials on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent. Under different heads, the Tribunal awarded a total compensation of Rs.49,515/-. The Tribunal found that the appellant is only a gratuitous passenger, as such, the third respondent insurer was absolved from the liability to pay the amount of compensation awarded by the Tribunal. 4. Inadequacy of the compensation awarded by the Tribunal and also the order absolving the third respondent from the liability to pay the amount of compensation are the subject matters of this appeal. 5. We heard the arguments of the learned counsel for the appellant and also the learned counsel for the third respondent insurer. **3** ## **M.A.C.A.No.1795 OF 2009** 6. The pleadings and materials on record would show that, at the time of the accident, the appellant was aged 25 years. He was travelling in the motor cycle bearing No.KL-11/J-469. The said vehicle was covered by a certificate of policy issued by the third respondent insurer, which was marked as Ext.B1. A perusal of Ext.B1 policy would show that it was a comprehensive policy covering the risk of the pillion rider. ## 7. In _**Francis K.T. vs. Sabu Augustine and another**_ **(2015 (5) KHC 320)** , a Division Bench of this Court in which one of us [PRRM(J)] was a member held that, when policy is a Standard Motor Package Policy or a Comprehensive policy, it should cover pillion rider as well and that the insurance company is liable to pay compensation and they cannot be exonerated. 8. In view of the principle laid down by this Court in Francis' case (supra) the finding of the Tribunal in the impugned award that the third respondent insurer has to be absolved from the liability cannot be sustained. Accordingly, we hold that the third respondent insurer is liable to pay to the appellant, the amount of **M.A.C.A.No.1795 OF 2009** **4** compensation awarded by the Tribunal. 9. Now we shall deal with the question regarding inadequacy of the compensation awarded by the Tribunal under different heads. Though the appellant claimed a monthly income of Rs. 6,000/- stating that he was working as a checker in a bus, there is absolutely no materials before the Tribunal to substantiate the aforesaid claim. In the absence of any reliable materials, the Tribunal fixed his monthly income notionally at Rs.2,500/-. Considering the fact that the accident occurred in the year 2001, and that at the time of the accident, the appellant was an able bodied person aged 25 years, we find it appropriate to re-fix his monthly income notionally at Rs. 4,000/- in order to compute loss of earning. 10. The Tribunal awarded a sum of Rs.10,000/- towards loss of earning by reckoning the monthly income as Rs.2,500/- for a period of 4 months. Since we have already re-fixed the monthly income of the appellant notionally at Rs.4000/-, he will be entitled for a sum of Rs.16,000/- towards loss of earning for a ## **M.A.C.A.No.1795 OF 2009** **==> picture [7 x 9] intentionally omitted <==** period of four months. In the result, the appellant will be entitled for an additional compensation of **Rs.6,000/** - under this head. 11. In the accident, the appellant sustained comminuted fractured Tibia lower end and fractured fibula lower 1/3[rd] of right leg, multiple abrasions and contusions. He was hospitalised for a period of 13 days. Regarding the disability arising out of the injuries sustained in the accident, no documents are produced before the Tribunal. However, the tribunal fixed notionally the percentage of the disability at 3%(which has attained finality in the absence of any challenge made by the respondents) and awarded Rs.16,200/- towards disability. The compensation towards disability, after reckoning his monthly income as Rs.4,000/-, percentage of disability as 3% and adopting a multiplier of 17, comes to Rs.24,480/-( 4000 X 12 X17 X 3/100 ). In the result, the appellant will be entitled for an additional compensation of **Rs.8,280** /- under this head. 12. Towards pain and suffering, the Tribunal awarded a sum **6** ## **M.A.C.A.No.1795 OF 2009** of Rs.10,000/-. Considering the injuries sustained and the nature of the treatment the appellant had undergone, we re-fix the compensation under this head as Rs.15,000/. Thus the appellant will be entitled for an additional compensation of **Rs.5,000/-** under this head. 13. Towards loss of amenities, the Tribunal has not awarded any compensation. Considering the nature of injuries sustained and the disability that may arise out of those injuries, we deem it appropriate to grant a sum of **Rs.15,000/-** under this head **.** 14. In the result, the appellant will be entitled for an additional compensation of **Rs.34,280/** -( **Rupees thirty four thousand two hundred and eighty only)** in this appeal **.** The appellant will be entitled for interest for the additional compensation awarded in this appeal at the rate of 9% per annum from the date of petition till realisation. Since we have already held that the third respondent insurer is liable to pay the amount of compensation, the said respondent shall deposit the additional compensation awarded in this appeal and also the **7** ## **M.A.C.A.No.1795 OF 2009** compensation awarded by the Tribunal (if the appellant is yet to realise the same from respondents 1 and 2) together with interest before Tribunal within a period of one month from the date of receipt of a certified copy of the judgment. The appeal is disposed of. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk