Kerala High Court
Suresh vs M.J.Joy on 25 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942
MACA.No.1937 OF 2008
AGAINST THE AWARD IN OPMV 191/2002 DATED 27-02-2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA
APPELLANT/S:
SURESH
KATTUPARAMBAN HOUSE, V.R.PURAM DESOM, PERAMBRA
VILLAGE,, VIJAYARAGHAVAPURAM P.O., MUKUNDAPURAM
TALUK,, THRISSUR DISTRICT.
BY ADV. SRI.P.V.BABY
RESPONDENT/S:
1 M.J.JOY
S/O.JACOB, MULANGADAN HOSUE, WEST CHALAKUDY P.O.
2 MANAGER ORIENTAL INSURANCE CO. LTD.
CHALAKUDY.
3 V.P.IBRAHIM
VILAKKATH HOUSE, PERUMATTOM, PUTHUPPADY P.O.,
MUVATTUPUZHA.
4 MANAGER ORIENTAL INSURANCE CO. LTD.
MARKET ROAD, MUVATTUPUZHA.
R1 BY ADV. SRI.P.JAYASANKAR
R4 BY ADV. SRI.N.S.NAJEEB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 25.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A. No. 1937 of 2008 2
P.V.KUNHIKRISHNAN, J
----------------------------------
M.A.C.A. No. 1937 of 2008
--------------------------------
Dated this the 25th day of February, 2021
JUDGMENT
Appellant is the claimant in O.P.(M.V.) No. 191/2002 on the file
of the Motor Accidents Claims Tribunal. This appeal is filed
challenging the quantum of compensation and exoneration of the
insurance company from paying the liability.
2. The brief facts are as follows :
On 1.8.2001, the appellant sustained injuries in a motor
accident. He was the pillion rider of the motor cycle bearing
registration No.KL-8/S 7650, the driver of which was the 1 st
respondent. The 1st respondent is also the owner of the motor cycle
and the 2nd respondent is the insurer. The case of the appellant is
that due to rash and negligence of the 1 st respondent, he lost control
over the motor cycle while overtaking another vehicle carelessly and
at that time, it happened to hit on another goods vehicle bearing No.
KL-7/R 9232. The appellant contended that the 3 rd respondent is the
owner of the said goods vehicle and the 4 th respondent is the insurer
of the goods vehicle. The appellant claims compensation from
respondents Nos. 1 and 2 alleging that the accident occurred due to
the rashness and negligence on part of the 1 st respondent. The
Tribunal framed the following issues :
1. Who is responsible for the accident ?
2. What, if any, is the quantum of compensation the
petitioner is entitled to get?
3. Who is liable to pay compensation ?
4. Reliefs and costs.
3. To substantiate the case, two witnesses were examined
on side of the appellant/claimant as PW1 and PW2. Exts. A1 to A14
are the exhibits marked on side of the appellants. Two documents
were marked on side of the respondents as Exts.B1 and B2. After
going through the evidence and the documents, the Tribunal passed
an award by which the petitioner is allowed to realise compensation
of Rs.50,400/- from the 1st respondent with interest at the rate of 7%
from the date of the petition till realisation and also proportionate
costs. The Insurance Company is exonerated from the liability for
the reason that the policy issued by the Insurance Company is an
'Act policy' which does not cover the risk of pillion rider.
4. Heard counsel for the appellant and counsel for the
respondents.
5. The counsel for the appellant submitted that in the light
of the decision of the Apex Court in National Insurance Company
Ltd. v. Balakrishnan and anr. [AIR 2013 SC 473], the exoneration
of the Insurance Company alleging that it was only an "act Policy" is
not sustainable. The counsel submitted that as far as the quantum
of compensation awarded is concerned, it is on a lower side. The
counsel submitted that the notional income fixed by the Tribunal is
only Rs. 2,000/-. The learned counsel relied on the judgment of the
Apex Court in Ramachandrappa v. The Manager, Royal
Sundaram Alliance Insurance Company Limited [AIR 2011 SC
2951]. The counsel submitted that he prayed to fix the notional
income only as Rs.3,000/-. According to the appellant, he was a
salesman in a chicken shop. The counsel submitted that even a
coolie will get more than Rs.3,000/- per month and the learned
Tribunal erred in fixing the notional income as Rs.2,000/-. The
counsel also submitted that PW1 is the doctor, who examined the
appellant. The appellant sustained very serious injuries. The counsel
submitted that Ext.A1 is the disability certificate in which it is stated
that there is 15% neuro disability due to the loss of memory to the
appellant. The counsel submitted that no amount is awarded based
on his disability. The counsel also submitted that the compensation
awarded for pain and sufferings is also too low. Towards loss of
amenities also, the counsel submitted that the compensation
awarded is too low.
6. The counsel for the respondents submitted that the
Tribunal after considering the entire aspects, fixed the
compensation and there is no evidence to enhance the
compensation. The counsel submitted that the disability certificate
is not proved in accordance to law. But the liability of the insurer is
admitted by the counsel in the light of the decision in National
Insurance Company's case (supra).
7. I perused the entire oral and documentary evidence in
this case. As rightly pointed out by the learned counsel for the
appellant, in the light of the decision in the National Insurance
Company's case (supra), the exoneration of the Insurance Company
will not stand. The relevant portion of the judgment in National
Insurance Company's case (supra) is extracted hereunder. :
"In view of the aforesaid factual position, there is no scintilla of
doubt that a "comprehensive/package policy" would cover the
liability of the insurer for payment of compensation for the occupant
in a car. There is no cavil that an "Act Policy" stands on a different
footing from a "Comprehensive/Package Policy". As the circulars
have made the position very clear and the IRDA, which is presently
the statutory authority, has commanded the insurance companies
stating that a "Comprehensive/Package Policy" covers the liability,
there cannot be any dispute in that regard. We may hasten to clarify
that the earlier pronouncements were rendered in respect of the "Act
Policy" which admittedly cannot cover a third party risk of an
occupant in a car. But, if the policy is a "Comprehensive/Package
Policy", the liability would be covered. These aspects were not
noticed in the case of Bhagyalakshmi (2009 AIR SCW 5325) (supra)
and, therefore, the matter was referred to a larger Bench. We are
disposed to think that there is no necessity to refer the present
matter to a larger Bench as the IRDA, which is presently the
statutory authority, has clarified the position by issuing circulars
which have been reproduced in the judgment by the Delhi High Court
and we have also reproduced the same."
8. In the light of the above, the exoneration of the Insurance
Company from paying the compensation will not stand. As far as the
disability is concerned, the counsel for the appellant submitted that
Ext.A1 is proved through PW1, the doctor. The counsel also
submitted that there is oral evidence of the appellant also. He also
gave evidence as PW2. In the light of the evidence of PW1 and PW2
coupled with Ext.A1, according to me, the disability is proved and
the Tribunal erred in denying any compensation for the disability of the
appellant. I perused Ext.A1 disability certificate and the evidence of PW1
and PW2. It cannot be said that Ext.A1 is not proved in accordance to law.
But after going through the oral evidence of PW1 and PW2 along with
Ext.A1 disability certificate, I am of the opinion that the fixation of the
disability as 15% cannot be accepted. The inquiry that has to be
conducted by the Court is the resultant loss of income generating capacity
of the claimant. In Pappu Deo Yadav v. Naresh Kumar and others [AIR
2020 SC 4424], the Apex Court observed that in assessing motor vehicle
compensation claims, duty of the court is to place the victim in as near a
position as she or he was in before the accident. Keeping in mind the
above principle and in the facts and circumstances of the case, according
to me, the disability sustained can be fixed at 7%. If that is the case, the
appellant is entitled for enhanced compensation. Similarly, the notional
income fixed by the Tribunal cannot be accepted. In the light of the
decision of the Apex Court in Ramachandrappa's case(supra), according
to me, the notional income can be fixed as Rs.3,000/-. Based on this
notional income, the appellant is entitled Rs.12,000/- for loss of earning.
An amount of Rs.8,000/- already given in the above is to be deducted.
Similarly, the amount awarded by the Tribunal for the pain and sufferings
is only Rs.12,000/-. According to me, in the facts and circumstances of
this case, it can be increased to Rs.15,000/-. Similarly, loss of amenities, it
can be increased to Rs.10,000/-. If that is the case, the enhanced amount
will be in the following manner :
Sl. Head Amount
No.
1 Compensation for Rs. 37,800/- (3000x12x15x7/100)
disability
2 Loss of Earnings Rs.4,000/- (4x3000 = 12000-8000
= 4000)
3 Pain and sufferings Rs.3000/-
4 Loss of amenities Rs.3000/-
Total Rs.47,800/-
9. Therefore, the appeal is allowed in part. The impugned award
is modified and the appellant is entitled an enhanced compensation of
Rs.47,800/- from the 2nd respondent. The appellant is entitled for interest
at the rate of 8% from the date of application.
The original compensation awarded by the Tribunal and the
enhanced compensation should be paid by the 2 nd respondent, the
Insurance Company.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
