Vinayachandran S/o Padmanabhan Kidavu v. Sreenivasan, C. Mohandas, National Insurance Company Limited, and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** ## **MACA NO. 1588 OF 2009** **AGAINST THE AWARD DATED 11.08.2008 IN OPMV 114/2005 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/PETITIONER:** VINAYACHANDRAN S/O.PADMANABHAN KIDAVU RESIDING AT CHEEKKILOTTU HOUSE P.O.NADUVATHOOR, (VIA)QUILANDY, KOZHIKODE BY ADVS. SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA ## **RESPONDENTS/RESPONDENTS:** 1 SREENIVASAN 5/484, CHETHIL HOUSE P.O.MODAKKALLOOR, KOZHIKODE 2 C.MOHANDAS S/O.MADHAVA KIDAVU, CHETHIL HOUSE P.O.THALAKULATHOR, KOZHIKODE * (DIED) 3 NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE. ADDL. RESPONDENTS 4 TO 6 IMPLEADED 4 ADDL. R4. RATNA KUMARI.C, PRASOONAM ( HOUSE), MODAKKALLOOR (P.O), ATHOLY, KOZHIKODE, PIN- 673 315. 5 ADDL R5. MRIDUL DAS C, 2 MACA No.1588 of 2009 PRASOONAM ( HOUSE), MODAKKALLOR (P.O), ATHOLY, KOZHIKODE, PIN- 673 315. 6 ADDL. R6. AISWARYA C PRASOONAM ( HOUSE), MODAKKALLOR (P.O), ATHOLY, KOZHIKODE, PIN- 673 315 ARE IMPLEADED AS ADDITIONAL R4 TO R6 AS PER ORDER DATED 19.11.2021 IN I.A 1/2021 IN MACA 1588/2009. BY ADV SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 MACA No.1588 of 2009 ## **Dated this the 24[th] day of March, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.114/2005 on the file of the Motor Accidents Claims Tribunal, Vadakara. The respondents 1 to 3 in the appeal were the respondents before the Tribunal. Pending the appeal, the second respondent had died and his legal representatives have been impleaded as additional respondents 4 to 6. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 28.11.2004. It was his case that, on the above said date, while he was riding pillion on a 4 MACA No.1588 of 2009 motorcycle bearing registration No. KL /18 926 through the Mundoth–Koomully road, the rider of the motorcycle - the second respondent - suddenly twisted the vehicle and as a result the vehicle capsized. The petitioner fell down and sustained serious a injuries, including depressed comminuted intraparticular fracture of his left tibia. He was treated as an inpatient at the Baby Memorial Hospital, Kozhikode from 28.11.2004 to 08.12.2004. The motorcycle was owned by the first respondent and insured with the third respondent. The petitioner was a Sales Manager with Max Life Insurance, Kozhikode and was drawing a monthly salary of Rs.15,000/-. Hence the petitioner had claimed a compensation of Rs.3,22,000/- from the respondents, which claim was limited to Rs.3,00,000/- 3. The respondents 1 and 2 did not contest the proceeding. 4. The third respondent had filed a written statement admitting that the motorcycle had a valid 5 MACA No.1588 of 2009 insurance coverage. Nevertheless, it was contended that as the petitioner was a pillion rider on the motorcycle, he was a gratuitous passenger and the third respondent was not liable to pay any amount as compensation. Hence, the third respondent prayed for exoneration. 5. The petitioner had produced and marked Exhibits A1 to A4 in evidence. The disability certificate was marked as Exhibit X1.The third respondent had produced the insurance policy, which was marked as Exhibit B1. 6. The Tribunal, after analysing the pleadings and materials on record, though found that Exhibit B1 was a package policy, relying on the decision of this Court in **Mathew Joseph v. Janaki** [2007 (1) KLT 747] held that the petitioner was a gratuitous passenger, therefore the third respondent was not liable to indemnify the insured. Accordingly, the Tribunal exonerated the third respondent and directed the respondents 1 and 2 to pay 6 ## MACA No.1588 of 2009 the petitioner an amount of Rs.92,817/- with interest and a cost of Rs.2500/-. 7. Aggrieved by the exoneration of the third respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri. A.V.M.Salahuddeen, the learned counsel appearing for the appellant/petitioner and Smt.Sarah Salvy, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The questions that emanate for consideration in this appeal are (i) whether the exoneration of the third respondent is sustainable in law ? (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. Admittedly, the petitioner was a pillion rider on the motorcycle. As per Exhibit A1 FIR registered in Crime No.175/2004 of the Atholi Police Station, it is 7 ## MACA No.1588 of 2009 established that the accident occurred due to the negligence of the second respondent. 11. On a perusal of Exhibit B1 insurance policy, it is seen that the policy is motorcycle/scooter policy ‘B’ package. 12.The Hon’ble Supreme Court in **National Insurance Company Ltd. V. Balakrishnan and** **others** [ AIR (2013) SC 473] has categorically held that a pillion rider is covered under a package policy. 13. In the light of the above exposition of law, Exhibit B1 being a package policy and the petitioner being a pillion rider, certainly, the third respondentinsurer is to indemnify the insured-first respondent of his liability. Thus, I set aside the finding of the Tribunal, exonerating the third respondent. Accordingly, I answer question No.(i) in favour of the appellant/petitioner and hold that the third respondent - insurer is liable to pay the compensation amount. 8 MACA No.1588 of 2009 ## **Question No.(ii)** 14. The petitioner had claimed that he was a Sales Man by profession and was earning monthly income of Rs.15000/-. The petitioner did not produce any material to substantiate his pleading. The Tribunal fixed the notional monthly income of the appellant/petitioner at Rs.2500/-. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 16. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2004, I re-fix the notional monthly income of the petitioner at Rs.4500/-. ## **Multiplier** 17. The petitioner was aged 39 years at the time of 9 MACA No.1588 of 2009 the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘15’. ## **Loss due to disability** 18. Taking into account the above mentioned factors, namely, the notional monthly income of the petitioner at Rs.4500/-, his disability at 2% and the multiplier at 15, I award the petitioner an amount of Rs.16,200/- towards ‘loss due to disability, instead of Rs.9600/- awarded by the Tribunal. ## **Loss of earnings** 19. The Tribunal had found that the appellant was indisposed for a period of four months. I confirm the said finding. 20. In view of the re-fixation of the notional monthly income of the petitioner at Rs.4500/-, I award him an amount of Rs.18,000/- under the head ‘loss of 10 ## MACA No.1588 of 2009 earnings’, instead of Rs.10,000/- awarded by the Tribunal. 21. With respect to other heads of compensation, I find the same to be reasonable and just. 22. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|6000|18000| |2|Transportation|2000|2000| |3|By stander expenses|3400|3400| |4|Medical expenses|34817|34817| |5|Pain and suferings|25000|25000| |6|Mental shock|8000|8000| |7|Loss due to disability|9600|16200| ||Total|92817|107417| In the result, the appeal is allowed, by holding that the appellant/petitioner is entitled to enhancement 11 MACA No.1588 of 2009 of Rs.14,600/- than what was awarded by the Tribunal, and in view of my findings on question No.(i), I direct the third respondent - insurer to pay the appellant/petitioner the entire compensation and enhanced compensation of Rs.1,07,417/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 157 days (i.e the period of delay and as ordered by this Court on 19.11.2021 in C.M.Application No. 1/2009), and a cost of Rs.5000/-. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm24/03/2022