Kerala High Court
Biju Cherian vs Biju Varghese on 3 January, 2022
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M.A.C.A.No.1225 of 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
MACA NO. 1225 OF 2012
AGAINST THE ORDER/JUDGMENT IN OPMV 788/2007 OF ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM
APPELLANT/S:
BIJU CHERIAN
S/O.CHERIAN, CHETTEDEATHU HOUSE, KUDAMALOOR KARA,
AYMANAM VILLAGE, KOTTAYAM.
BY ADV SRI.MATHEW JOHN (K)
RESPONDENT/S:
1 BIJU VARGHESE
S/O.VARGHESE, MATTATHIL HOUSE [NAYICKANPARAMBU],
PULICHUVADU BHAGOM, KUDAMALOOR KARA, AYMANAM
VILLAGE, KOTTAYAM.686 015.
2 BIJU VARKEY
S/O.VARKEY, NAYICKANPARAMBU HOUSE, KUDAMALOOR POST,
KOTTAYAM DISTRICT.686 017.
3 THE DIVISIONAL MANAGER
ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE
NO.1, BAKER JUNCTION, KOTTAYAM.686 001.
BY ADVS.
SRI.V.K.SUNIL -R1 and R2
SRI.VPK.PANICKER -R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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M.A.C.A.No.1225 of 2012
C.S.DIAS, J.
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M.A.C.A.No.1225 of 2012
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Dated this the 3rd day of January, 2022.
JUDGMENT
The appellant was the petitioner in OP(MV)
No.788/2007 on the file of the Additional Motor Accidents
Claims Tribunal, Kottayam. The respondents in the appeal
were the respondents before the Tribunal.
2. The appellant had filed the claim petition under
section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the injuries that he sustained
in the accident on 25.3.2007. It was his case that, while
he was accompanying the goods in a goods auto-rickshaw
bearing registration No.KL-5P/9270, due to the negligence
of the first respondent, the auto-rickshaw overturned near
toll pura at Parampuzha on Mosco Kavala-Chavittuvari
M.A.C.A.No.1225 of 2012
public road. The appellant sustained serious injuries and
was treated as an inpatient at the Matha Hospital,
Thellakom from 25.3.2007 to 5.4.2007. The appellant was
a driver with Paragon Company and was earning a monthly
income of Rs.8,000/-. The auto-rickshaw was owned by
the second respondent and insured with the third
respondent. The appellant claimed a total compensation of
Rs.4,50,000/- from the respondents.
3. The respondents 1 and 2 did not contest the
proceedings.
4. The third respondent had filed a written-
statement contending that the appellant was a gratuitous
passenger in the auto-rickshaw. The second respondent
had not paid additional premium to cover a non-paying
passenger in the goods vehicle. Therefore, the third
respondent may be exonerated of its liability.
M.A.C.A.No.1225 of 2012
5. The appellant examined himself and a witness as
PWs 1 and 2 and marked Exts A1 to A11 in evidence. The
third respondent produced the insurance policy, which was
marked as Ext B1.
6. The Tribunal, after analysing the pleadings and
materials on record, allowed the claim petition, in part, by
permitting the appellant to realise from the respondents 1
and 2 an amount of Rs.1,15,000/- with interest and cost.
The third respondent was exonerated of its liability.
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.Mathew John, the learned counsel
appearing for the appellant/petitioner, Sri.V.K Sunil, the
learned counsel appearing for the respondents 1 and 2 and
Sri.V.P.K Panicker, the learned Senior Counsel appearing
M.A.C.A.No.1225 of 2012
for the third respondent.
9. The questions that arise for consideration in the
appeal are: (i) whether the exoneration of the third
respondent/insurer is sustainable in law, and (ii) whether
the quantum of compensation awarded by the Tribunal is
reasonable and just.
Question No.(i)
10. Admittedly, the appellant was travelling in a
goods auto-rickshaw, which was driven by the first
respondent and owned by the second respondent. Going
by the conditions in Ext B1 policy, the second respondent
had not paid additional premium to cover a passenger in
the goods auto-rickshaw. The question whether the
insurer is liable to indemnify an owner of a goods auto-
rickshaw is no longer res integra in view of the declaration
of law by this Court in Bajaj Alliance General Insurance
Co. Ltd vs Bheema and another [MACA 1224/2012].
M.A.C.A.No.1225 of 2012
In the light of the law laid down in the aforecited decision
and considering the fact that the appellant was only a
gratuitous passenger in the goods auto-rickshaw, I
confirm the finding of the Tribunal that the third
respondent is not liable to indemnify the second
respondent of its liability to pay the compensation amount
to the appellant.
Question No.(ii)
11. The appellant had claimed that he was a driver in
Paragon Company, Kottayam and earning a monthly income
of Rs.8,000/-. In order to substantiate his assertion, he had
produced Ext A8 salary certificate. However, the Tribunal
for the reason that Ext A8 was not corroborated by the
author of the salary certificate, fixed the notional income of
the appellant at Rs.3,250/-.
12. It is well-settled that, proceedings before the
Tribunal is inquisitorial in nature and strict rules of
M.A.C.A.No.1225 of 2012
evidence are not necessary. Ext A8 salary certificate was
marked in evidence without any demur or protest from the
respondents. Hence, I accept Ext A8 in its entirety. As per
Ext A8 salary certificate, the net monthly salary of the
appellant was Rs.5,530/-. Hence, I monthly fix the salary of
the appellant as certified in Ext A8 at Rs.5,530/-.
Loss of earnings
13. The Tribunal has held that the appellant was
indisposed for a period of four months. I confirm the said
finding. However, in view of the refixation of the monthly
salary of the appellant at Rs.5,530/-, I hold that the
appellant is entitled to a further amount of Rs.9,120/-
towards loss of earnings ( i.e., Rs.5530 x 4 - Rs.13,000/-).
Pain and sufferings and loss of amenities
14. It is on record, as per Ext A6 wound certificate,
that the appellant had sustained a crush injury on his left
wrist with bone loss and vascular injury. He was treated as
M.A.C.A.No.1225 of 2012
an inpatient for the period from 25.3.2007 to 5.4.2007. He
was also indisposed for a period of four months. In the
above circumstances, I hold that the appellant is entitled to
further amounts of Rs.8,000/- under the head 'pain and
sufferings' and Rs.14,000/- under the head 'loss of
amenities'.
In the result, the appeal is allowed, in part, by
upholding the finding regarding exoneration of the third
respondent, but by enhancing the compensation by a
further amount of Rs.31,120/- (Rupees Thirty One
Thousand One Hundred and Twenty only) (i.e., Rs.9,120/-
towards loss of earnings + Rs.8,000/- towards pain and
sufferings + Rs.14,000/- towards loss of amenities). The
respondents 1 and 2 are ordered to pay the enhanced
compensation to the appellant with interest at the rate of
7.5% per annum from the date of claim petition till the
date of realization and a cost of Rs.5,000/- within a period
M.A.C.A.No.1225 of 2012
of sixty days from the date of receipt of a certified copy of
the judgment. Needless to mention that, if the amount is
not paid within the stipulated time period, the appellant
would be at liberty to proceed against the respondents 1
and 2 to recover the amount in accordance with law.
Sd/-
sks/3.1.2022. C.S.DIAS, JUDGE
