High Court of KeralaSingle Judge2021-08-05The appeal is allowed; insurer held liable and ...

Yashif Shameer v. P. Mohammed Koya and The New India Assurance Company

Case / Petition Number:MACA NO. 1230 OF 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-08-05
Court Decision / Holding: Appeal allowed. Enhanced compensation by Rs.36,400 with interest at 7% per annum from the date of petition till the date of deposit, after deducting 89 days of delay, and proportionate costs. The 2nd respondent insurer is ordered to pay the enhanced amount with interest and costs by depositing the sum before the Tribunal within two months from receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law.
Final Disposition: The appeal is allowed; insurer held liable and compensation enhanced by Rs.36,400; interest at 7% from petition date to deposit; two-month window for deposit; Tribunal to disburse enhanced amount.

Parties to the Case

Appellants / Petitioners

Yashif Shameer

Respondents

P. Mohammed Koya
The New India Assurance Company

Legal Representation & Advocates

Counsels for Petitioners

• Sri Joseph A. Vadakkel
• Sri George Karithanam Varghese
• Sri V.J. John
• Sri Jose KuriaKose Vilangattill

Counsels for Respondents

• Sri K.C. Santhoshkumar

Case Synopsis & Summary

On 28.04.2002, Yashif Shameer, a 13-year-old pillion passenger, sustained injuries in a road accident when the motorcycle KL10/E-692, owned by the rider, met with a crash at Vennayoor road junction. He was hospitalized for 74 days at Medical College Hospital. He claimed compensation from the owner-driver and insurer, initially seeking Rs 4.4 lakh but limiting the petition to Rs 2 lakh. The II Additional Motor Accidents Claims Tribunal, Kozhikode, partially allowed the petition, awarding Rs 34,576 with 7% interest from the petition date and Rs 250 costs, but exonerated the insurer because the claimant was a pillion rider. The insurer challenged the award, arguing that the appellant’s age rendered the claim excessive and that the insurer ought not to be liable under the policy. The High Court reversed the Tribunal’s exoneration of the insurer, citing National Insurance Co. Ltd. v. Balakrishnan and Others (AIR 2013 SC 473) that a package policy obliges the insurer to indemnify the vehicle owner, hence the insurer is liable. It adopted a uniform notional income standard for a student child, referencing National Insurance Co. Ltd. v. K.K. Assainar (2019 KHC 685) and Rajkumar v. Ajaykumar (2011) 1 KLT 620 SC to fix a notional income of Rs.2,750 per month, with a multiplier of 15 and 5% disability with 40% future prospects. Ext.X1 confirms a 5% disability. The judge recalculated compensation: Rs.34,650 for disability (up from Rs.11,250) and Rs.13,000 for loss of amenities (up from Rs.2,000), totaling an enhanced award of Rs.36,400, with interest at 7% per annum from the petition date to deposit, after deducting 89 days of delay. The insurer is to pay the enhanced amount with costs by depositing within two months; the Tribunal will disburse the funds.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the insurer cannot be exonerated from liability where the vehicle involved was covered by a package policy, and the claim should be determined by notional income and disability standards applicable to a child claimant. Relying on Balakrishnan (AIR 2013 SC 473), the insurer’s liability to indemnify the owner is established when a package policy is in force. The court should apply uniform notional income rules for a student child and consider the 5% disability with 40% future prospects to compute compensation. The appellant argues for an enhanced, fair award based on the established framework and the facts of hospitalization (74 days).

Contentions of Respondents

The respondents contend that the insurer’s liability should be limited if the act of negligence by the rider does not clearly implicate the insurer in a straightforward manner due to the pillion rider status. The insurer also challenges the quantum of damages and the notional income calculation, arguing that the petition and evidence do not justify the enhanced amounts. They rely on the Tribunal’s assessment and maintain that the policy’s scope should be interpreted in light of the package policy terms, which could affect the liability allocation. They advocate restraint in increasing the compensation beyond the Tribunal’s valuation without substantial corroboration.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Balakrishnan and Others	AIR (2013) SCC 473	Positive	Held that the insurer is liable to indemnify the owner if the two-wheeler is covered by a package policy, supporting insurer liability in package-policy scenarios.
National Insurance Company Ltd. v. K.K. Assainar and Others	(2019) KHC 685	Positive	Used to formulate notional income for a student, endorsing uniform standards for calculating compensation in child-claim cases.
Rajkumar v. Ajaykumar	(2011) 1 KLT 620 SC	Positive	Courts rely on this decision to accept Ext.X1 disability assessment and to apply the 5% disability with 40% future prospects framework in Young claimant cases.

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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 C.S.DIAS** **THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943 MACA NO. 1230 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 2465/2000 OF II ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL , KOZHIKODE** ## **APPELLANT/PETITIONER IN THE O.P (MV):** YASHIF SHAMEER, S/O.SAIDALI, AGED 42 YEARS, PAZHAYA ILLATH, HOUSE, BEACH ROAD P.O., KADALUNDI,, KOZHIKODE. BY ADVS. SRI.JOSEPH A.VADAKKEL SRI.GEORGE KARITHANAM VARGHESE SRI.V.J.JOHN SRI.JOSE KURIAKOSE VILANGATTIL ## **RESPONDENTS/RESPONDENTS:** 1 P.MOHAMMED KOYA, CHAKKINGATHODY HOUSE, POOPATHUMCHOLA,, P.O.ARIMBRA, MALAPPURAM. 2 THE NEW INDIA ASSURANCE COMPANY CATHOLIC CENTRE, UP HILL, MALAPPURAM. BY ADV SRI.K.C.SANTHOSHKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1230 OF 2009 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2465 of 2000 on the file of the II Additional Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the petitioners before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal are: on 28.4.2002, while the appellant was travelling as pillion on motorcycle bearing Reg.No.KL10/E-692 from Puthupadam to Ikarappadi, when the vehicle reached Vennayoor road junction, the motor cycle capsized and as a result of which the appellant sustained injuries. He was taken to the Medical College Hospital, and was treated as an inpatient for a period of 74 days. The accident occurred due to the negligence on the part of the 1[st] respondent who was the owner-cum driver of the rider of the motorcycle. The 2[nd] respondent was the **MACA NO. 1230 OF 2009 3** insurer of the motorcycle. The appellant was 13 years of age and was a student. The appellant stated that he had suffered permanent disability, and claimed an amount of Rs.4,40,000/- as compensation from the respondents, but limited the same to Rs.2,00,000/-. 3. The 1[st] respondent did not contest the proceedings. 4. The 2[nd] respondent filed a written statement admitting that the motorcycle was covered by a package policy. However, the appellant's age was disputed and it was contended the amount of compensation claimed was excessive. 5. The appellant produced and marked Exts.A1 to A5 series in evidence. The 2[nd] respondent produced copy of the insurance policy and marked it as Ext.B1 in evidence. Ext.X1 disability certificate issued by the Medical Board attached to the Medical College Hospital, **MACA NO. 1230 OF 2009 4** Calicut was marked as Ext.X1. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award, allowed the claim petition in part by allowing the appellant to realise an amount of Rs.34,576/- with interest at @ 7% per annum from the date of petition till the date of deposit and a cost of Rs.250/- . However, the Tribunal permitted the appellant to realise the aforesaid amount from the 1[st] respondent and exonerated the 2[nd] respondent of its liability because the appellant was a pillion rider on the motorcycle. 7. Aggrieved by the exoneration of the 2[nd] respondent of its liability to pay the compensation, and dissatisfied with the quantum of compensation awarded by the tribunal, the insurer is in appeal. 8. Heard, Sri. Jose Kuriakose, the learned counsel appearing for the appellant/petitioner and **MACA NO. 1230 OF 2009 5** Sri.K.C.Santhoshkumar, the learned counsel appearing for the 2[nd] respondent/Insurer. 9. The questions that arise for consideration in this appeal are: (i) Whether the exoneration of the 2[nd] respondent/insurer of its liability is justifiable or not ? (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just ? 10. Ext.A1 FIR registered by the Kondotty Police in Crime No.174 of 2000 r/w Ext.A2 wound certificate proves that the accident occurred on account of the negligence of the 1[st] respondent. Undisputedly, Ext.B1 insurance policy shows that it was a package policy. 11. In _**National Insurance Company Ltd., v. Balakrishnan and Others [AIR (2013) SCC 473]**_ , the Hon'ble Supreme Court has held that the insurer is liable to indemnify the owner of the vehicle if the two wheeler is **MACA NO. 1230 OF 2009 6** covered by a package policy. In light of the above categoric declaration of law and the fact that Ext.B1 was a package policy, I hold that the finding of the Tribunal is that the insurer is not liable to pay the compensation is erroneous and wrong and is therefore set aside. Hence, I answer Question No.1 in favour of the appellant by holding that the insurer is liable to indemnify the 1[st] respondent of his liability to pay compensation. ## **Question No.2** 12. The appellant had claimed that he was 13 years of age and a student. No amount was shown in the claim petition as his notional income. The Tribunal for the purpose of computing the compensation fixed the notional income of the appellant at Rs.1,250/-per month. 13. This Court in _**National Insurance Company Ltd., v. K.K.Assainar and others [(2019) KHC 685],**_ in order to infuse uniformity in the case of fixation of **MACA NO. 1230 OF 2009 7** notional income of children, in paragraph 18 has formulated a framed a ready reckner giving the notional income for students from the financial year 1995-1996 to 2018-2019. For the year 2002, an amount of Rs.33,000/is fixed as the annual notional income of a student. 14. In view of the law laid down in _**Assainar**_ (supra), though it relates to death claim of children, I accept the same standard, to fix the notional income of the appellant. Accordingly, I fix the notional income of the appellant at Rs.2,750/- per month. ## **Multiplier** 15. As the appellant was aged 13 years as on the date of accident, the relevant multiplier is '15'. ## **Disability** 16. As per Ext.X1 disability certificate issued by a five member Medical Board of the Medical college Hospital, Calicut, the appellant's permanent disability has **MACA NO. 1230 OF 2009 8** been fixed at 5%. In view of the law laid down in _**Rajkumar v. Ajaykumar [(2011) 1 KLT 620 SC]**_ , I accept Ext.X1, assessing the disability of the appellant. ## **Loss due to disability** 17. As per Ext.X1, the appellant has equin conpractura due to tendo achlis injury on the heel pad. Taking into account the above injury and the fact that the appellant was only 13 years of age and he has sustained 5% permanent disability, he should also be awarded 40% future prospects on the loss of disability. Accordingly, I refix the compensation for loss due to disability at Rs.34,650/- instead of Rs.11,250/- awarded by the Tribunal. ## **Loss of Amenities in life** 18. Although the appellant had claimed a total compensation at Rs.1,00,000/- as compensation for loss of amenities, the Tribunal has awarded only an amount of **MACA NO. 1230 OF 2009 9** Rs.2,000/-, which according to me is on the lower side. Taking note of the fact that the appellant was hospitalised for a period of 74 days and that he has suffered a permanent disability of 5% as per Ext.X1, I hold that the appellant is entitled for a further amount of Rs.13,000/under the said head. 19. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just. 20. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the aforecited decisions, I am of the opinion that the appellant/petitioner is entitled for enhancement as modified and recalculated above, i.e an enhancement by a further amount of Rs.36,400, i.e Rs.23,400 under the head 'loss due to disability' and Rs.13,000 towards 'loss of amenities'. **MACA NO. 1230 OF 2009 10** In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.36,400 with interest @ 7% per annum from the date of petition till the date of deposit after deducting the period of 89 days, i.e the period of delay in filing the appeal and as ordered by this Court on 7.7.2021 in C.M.Appln.No.1 of 2009, and proportionate costs. The 2nd respondent is ordered to pay the enhanced compensation with interest and costs by depositing the said amount 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/petitioner and in accordance with law. sd/- **C.S.DIAS, JUDGE** pm