Kerala High Court

Aliyamma George vs George And Another on 13 July, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
         TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                         MACA NO. 2238 OF 2010
AGAINST THE ORDER/JUDGMENT IN OPMV 155/2007 OF MOTOR ACCIDENT CLAIMS
                      TRIBUNAL ,KOTTAYAM, KOTTAYAM
APPELLANT/PETITIONER:

             ALIYAMMA GEORGE, W/O.GEORGE
             CHELLANNIYIL HOUSE,PUTTUMANUR KARA, NEW RESIDING, AT
             MEVALLOOR DESOM, VELLOOR VILLAGE,VAIKOM TALUK.

             BY ADV SRI.T.K.KOSHY



RESPONDENTS/RESPONDENTS 1 & 2:

     1       GEORGE, S/O.ABRAHAM,CHELLANNIYKL (H),PUTTUMANUR KARA,
             PUTTUMANUR KARA,PUTHENCRUZ VILLAGE - 682 308.

     2       THE UNITED INDIA INSURANCE CO.LTD.
             THRIPUNITHURA 682 301.

             BY ADV SMT.RAJI T.BHASKAR




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2238 OF 2010
                             2




                        JUDGMENT

The appellant was the petitioner in O.P(MV)

No.155/2007 on the file of the Motor Accidents Claims

Tribunal, Kottayam. The respondents in the appeal

were the respondents before the Tribunal.

2. The concise facts in the claim petition,

relevant for the determination of the appeal, are: on

24.04.2006 while the appellant was riding as a pillion

on a motorcycle bearing Reg.No.KL-7P/7480 driven by

the 1st respondent and while they were travelling along

the Thripunithura-Karimukal road, when the vehicle

reached Ambalamukal, the motorcycle attempted to

overtake an autorickshaw. The appellant's left leg got

entangled in the wheel of the motorcycle causing her

serious injuries. The 5th toe of the appellant had to be

amputated and she also sustained injuries on her 3 rd MACA NO. 2238 OF 2010

and 4th toes of her left leg and a crush injury on her

left foot. She was treated as an inpatient at the

Vijayakumara Menon Hospital from 24.4.2006 to

3.5.2006 i.e, for a period of 10 days. The appellant was

a home maker and earning a notional income of

Rs.4,500/- per month. The motorcycle was owned by

the 1st respondent and insured with the 2 nd respondent.

Hence, the appellant claimed a compensation of

Rs.1,36,500/- from the respondents, but limited it to

Rs.1,00,000/-.

3. The 1st respondent did not contest the

proceedings and was set ex parte.

4. The 2nd respondent filed a written statement,

inter alia, contending that the appellant was a

gratuitous passenger travelling on the motorcycle.

Hence the 2nd respondent was not liable to cover a

gratuitous passenger as per conditions in the insurance

policy. The compensation claimed under the different MACA NO. 2238 OF 2010

heads were excessive and exorbitant. Hence, the claim

petition may be dismissed.

5. The appellant produced and marked Exts.A1to

A6 in evidence.

6. The Tribunal, after analysing the pleadings

and materials on record, dismissed the claim petition on

the ground that as the 1st respondent being the husband

of the appellant, the appellant was not entitled to get

any compensation.

7. Aggrieved by the impugned award passed by

the Tribunal, the petitioner is in appeal.

8. Heard the learned counsel appearing for the

appellant/petitioner and the learned counsel appearing

for the 2nd respondent/Insurance Company.

9. The questions that emerge for consideration in

this appeal are:

(i) Whether the finding of the Tribunal, that

because the the rider of the motor cycle was the MACA NO. 2238 OF 2010

husband of the appellant, she was dis-entitled for

compensation, was justifiable or not ?

(ii) What is the reasonable and just compensation

payable to the appellant?

10. Ext.A4 charge-sheet filed by the City Traffic

Police Station, Kochi in Crime No.2155/2006

substantiates that the accident occurred on account of

the negligence on the part of the 1st respondent, who

drove the motorcycle in a negligent manner.

Admittedly, the motorcycle was covered by a

package/comprehensive policy.

11. In Sajad Saheer v. Rajeev [2017 (3) KLT SN

35 (Case. No.45)], this Court has held that contributory

negligence cannot be attributed on the pillion rider of

the vehicle, who was no role in riding/driving the

vehicle.

12. Merely because the 1st respondent was the

husband of the appellant, the appellant cannot be MACA NO. 2238 OF 2010

disentitled to claim compensation. The said finding of

the Tribunal is erroneous and unsustainable in law.

13. Moreover, the Police after investigation have

categorically found as per Ext.A4 chargesheet that, it

was the 1st respondent who was negligent in causing

the accident. In light of Ext.A4 charge-sheet and the

settled law that the person accused of negligence has

to prove negligence on the part of the rider of the

motorcycle, I hold that the appellant is entitled for

claiming compensation on account of the negligence of

the 1st respondent . Undisputedly, the motorcycle was

covered by a Package/Comprehensive policy.

14. Although the law at the time of passing the

award was that a pillion rider was not covered by a

package policy, in view of the categoric declaration of

law in National Insurance Company Ltd. v.

Balakrishnan and others [AIR (2013) SC 473]

wherein it has been held that a pillion rider is entitled MACA NO. 2238 OF 2010

for compensation, if the vehicle is covered by a

comprehensive policy. Hence, I answer Question No.1

in favour of the appellant and hold that the 2 nd

respondent is liable to indemnify the 1st respondent of

his liability to pay compensation to the appellant.

15. Now coming to the question of reasonable and

just compensation.

16. The appellant had claimed that she was a

home maker and earning a monthly income of

Rs.4,500/-. The Tribunal though dismissed the claim

petition, in order to fix the compensation payable as

laid down by this Court, fixed the probable amount that

would have to be paid, if the claim petition was allowed.

Accordingly, the Tribunal fixed the notional income of

the appellant at Rs.3,000/- per month.

Notional income

17. In Rajendra Singh v. National Insurance

Co. Ltd. [2020 (4) KLT 6 (SC)] , the Hon'ble Supreme MACA NO. 2238 OF 2010

Court has fixed the notional income of a wife at

Rs.5,000/- per month.

18. Taking into consideration the above ratio and

the fact that the appellant had claimed an amount of

Rs.4,500/- per month, I re-fix the notional income of the

appellant at Rs.4,500/- as claimed for in the claim

petition.

Loss of earnings

19. As per Ext.A5 wound certificate, it is proved

that the appellant had sustained a crush injury on her

left leg and also had to amputate her 5 th toe and also

sustained injuries on her 3rd and 4th toes. She was

treated as an inpatient for a period of 10 days and her

left was put in plaster cast for more than one month. In

the said circumstances, I hold that the appellant was

incapacitated for a period of five months. In view of the

re-fixation of the notional income of the appellant at

Rs.4,500/- and the period of incapacity fixed at five MACA NO. 2238 OF 2010

months, I hold that the appellant is entitled for 'loss of

earning' at Rs.22,500/-.

Bystander expenses

20. It is proved that the appellant was hospitalised

for a period of ten days. Considering that the accident

occurred in the year 2006, I re-fix the by-stander

expenses at Rs.2,00/- per day for a period of ten days,

ie. a total amount of Rs.2,000/- under the head

'bystander expenses'.

Pain and suffering

21. The appellant had claimed an amount of

Rs.30,000/- under the head 'pain and suffering'. It is

proved by Ext.A5 that the appellant had a crush injury

on her left foot, her 5th toe had to be amputated and she

had also sustained injuries on her 3rd and 4th toes. She

was treated as an inpatient for a period of 10 days , her

leg was put in plaster cast for a period of more than

one month and was incapacitated for a period of five MACA NO. 2238 OF 2010

months. In view of the said factors, I re-fix the

compensation under the head 'pain and suffering' at

Rs.20,000/-.

Loss of amenities

22. The appellant had claimed an amount of

Rs.20,000/- as loss of amenities. Taking into

consideration the factors mentioned under the head

'pain and suffering', I hold that the appellant is entitled

for compensation under the head 'loss of amenities'

as claimed for in the claim petition at Rs.20,000/-..

Other heads of claim

23. With respect to the other heads of

compensation, namely, Transport to hospital, Extra-

nourishment, Damage to clothing and Medical

expenses, I find that the probable amount fixed by the

Tribunal at Rs.1,000, Rs.500, and Rs.10,610/-

respectively to be just and reasonable.

24. Even though the appellant had claimed MACA NO. 2238 OF 2010

compensation for permanent disability, the appellant

had not produced the disability certificate or got her

disability assessed by a Medical Board as per the

mandate in Raj Kumar v. Ajay kumar [2011 (1) KLT 620

(SC)]. Therefore, I hold that the appellant is not entitled for

any compensation under the said head.

25. On an overall re-appreciation of the pleadings

and materials on record and the law laid down in the

afore-cited decisions, I am of the definite opinion that

the appellant is entitled for compensation as re-

calculated above and given in the table below for easy

reference.


 SI                 Head of claim        Probable amount   Amounts
                                           fixed by the    modified
 .No                                        Tribunal (in   and
                                              rupees)      recalculated
                                                           by this Court


  1      Loss of earning                     6,000         22,500


  2.     Transport to hospital               1,000          1,000



 MACA NO. 2238 OF 2010


  4.     Bystander expenses           1,000        2,000


  5.     Extra nourishment             500          5,00


  6.     Medical expenses            10,610        10,610


 7.      Pain and suffering          20,000        20,000


 8.      Loss of amenities            5,000        20,000


         Total                       36,610        77,110

                                    ======         ======

In the result, the appeal is allowed, in part, by

fixing the compensation at Rs.77,110/- . The 2nd

respondent is directed to pay the compensation amount

with interest at the rate of 6% per annum from the

date of petition till the date of deposit, after deducting

the interest for a period of 76 days, i.e, the period of

delay in preferring the appeal and as ordered by this

Court on 30.3.2021 in C.M.Appli. No.2908/2010, and

proportionate costs. The 2nd respondent shall deposit

the compensation awarded in the appeal before the MACA NO. 2238 OF 2010

Tribunal with interest and proportionate costs within

a period of two months from the date of receipt of a