Kerala High Court
Lizy Jose vs P.D.Baby on 9 October, 2007
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937
MACA.No. 1838 of 2009 ( )
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AGAINST THE AWARD IN OPMV 144/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL
WAYANAD, KALPETTADATED 09-10-2007
APPELLANT/PETITIONER:
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LIZY JOSE, AGED 32 YEARS,
W/O.JOSE, KEEZETH HOUSE, ARATTUTHARA P.O.
MANANTHAVADY TALUK, WAYANAD DISTRICT.
BY ADV. SRI.N.J.ANTONY
RESPONDENTS/RESPONDENTS:
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1. P.D.BABY, AGED 39 YEARS,
S/O.DAVID, POOVANNAMVILAYIL HOUSE, P.O.ARATTUTHARA
MANANTHAVADY TALUK
(DRIVER CUM OWNER OF MOTOR CYCLE NO.KL-12A/7781
D.L.NO.2221/99-2000).
2. THE ORIENTAL INSURANCE CO.LTD.,
JASEELA COMPLEX, MANJERI, (POLICY NO.NOT
KNOWN, VALID FROM 22.2.2000 TO 21.2.2001).
R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
25-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
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M.A.C.A.No.1838 OF 2009
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DATED THIS THE 25th DAY OF FEBRUARY, 2016
JUDGMENT
ANIL K.NARENDRAN , J.
The appellant is the claimant in OP (MV)No.144/2001 on the file of the Motor Accidents Claims Tribunal, Wayanad, an application filed under Section 166 of the Motor Vehicles Act, 1988. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of injuries sustained to the appellant, pursuant to a road traffic accident occurred on 8.2.2001.
2. The factual position revealed from the proceedings is that, while the appellant was travelling as pillion rider in a motor cycle bearing No.KL-12/A-7718 from Vattiyoorkavu to Mananthavady, the motor cycle fell into a gutter on the road and the 1st respondent, the owner-cum-rider of the motor cycle lost control over the vehicle. The appellant was thrown out to the road, causing serious injuries, which led to the claim petition filed before the Tribunal, seeking to compensate the loss.
3. Before the Tribunal, the matter was contested mainly by the 2nd respondent insurer. The nature of contention raised by the respondent Insurance Company was mainly on quantum and MACA No.1838/2009 -2- negligence.
4. The evidence adduced before the Tribunal consists of the oral testimony of PW1 and Exts.A1 to A6 produced on the side of the appellant. The respondents have not chosen to adduce any oral or documentary evidence.
5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred solely because of the negligence on the part of the 1st respondent rider of the motor cycle. Since no documents were produced to prove that additional premium was paid to cover pillion rider, the 2nd respondent insurer was exonerated from the liability.
6. Referring to serious consequences resulted because of the injury, the appellant claimed a total sum of 1,75,000/-. Awarding amounts under different heads, total compensation was fixed as 23,500/-, which was directed to be satisfied with interest @7% per annum from the date petition till satisfaction.
7. Inadequacy of compensation awarded by the Tribunal and the exoneration of the 2nd respondent insurer from liability are the subject matters of challenge in this appeal.
8. Heard the learned counsel for the appellant as well as the learned counsel for the Insurance Company. MACA No.1838/2009 -3-
9. The amounts awarded by the Tribunal under different heads as given in paragraph 8 of the Award are as follows :
Loss of earning : 500/-
Transport to hospital : 500/-
Extra nourishment : 300/-
Damage to clothing : 250/-
bystander's expenses : 300/-
Medical expenses : 300/-
Pain and suffering : 5,000/-
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Total : 7,150/-
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10. At the time of accident, the appellant was aged 32 years. She claimed a monthly income of 4,000/- as a tailor. In order to substantiate the aforesaid contention, no documents were produced before the Tribunal. It was in such circumstances, the Tribunal reckoned the notional monthly income as 2,100/-. However, we notice that the appellant herself was examined as PW1, who deposed in support of her claim regarding monthly income. Considering the fact that, the accident is of the year 2001 and at the time of accident the appellant was an able bodied person aged 32 years, we deem it appropriate to re-fix the notional monthly income as 3,000/- for the purpose of calculating loss of earning.
11. The nature of injuries sustained by the appellant as borne out from Ext.A3 reference card and Ext.A4 CT scan report MACA No.1838/2009 -4- shows that she sustained depressed fracture to right parietal bone and focal contusion to right parietal lope. However, there is absolutely no materials to show that the appellant sustained any permanent disability out of the injuries in the accident. Considering the nature of injuries sustained, we deem it appropriate to grant loss of earning for a period of three months. The Tribunal awarded only an amount of 500/- towards loss of earning. Since we have already re-fixed the notional monthly income of the appellant as 3,000/-, she will be entitled for a sum of 9,000/- under this head. After deducting 500/- awarded by the Tribunal, the additional compensation comes to 8,500/-.
12. Towards pain and suffering, the Tribunal awarded only a sum of 5,000/-. Considering the nature of injuries sustained as borne out from the documents on record, we deem it appropriate to re-fix the compensation under this head as 15,000/- resulting an additional compensation of 10,000/-.
13. Towards loss of amenities, the Tribunal has not awarded any amount. Considering the nature of injuries sustained and the discomfort that may arise therefrom, we deem it appropriate to grant a sum of 10,000/- towards loss of amenities.
14. The compensation awarded by the Tribunal under other MACA No.1838/2009 -5- heads represent just and reasonable compensation, which requires no interference in this appeal.
15. In the result, the appellant will be entitled for an additional compensation of 28,500/- in this appeal, together with interest at the rate of 9% from the date of petition till realisation.
16. The Tribunal absolved 2nd respondent-insurer from the liability on the ground that the pillion rider is not covered by the policy, since no additional premium is paid. The said issue is no more res integra in view of the judgment of this Court in New India Assurance Co. Ltd. v. Mohammed Ali and others (2013 (4) KLT 822). In that view of the matter, the reasoning of the Tribunal in absolving the 2nd respondent insurer from the liability to pay the amount of compensation awarded to the appellant cannot be sustained. We hold that the 2nd respondent insurer is liable to pay the compensation originally awarded by the Tribunal, if the appellant is yet to recover it from the 1st respondent owner- cum-driver, as well as the additional compensation awarded in this appeal.
17. The appeal was filed with a delay of 540 days, which was condoned as per order in C.M.Appln.No.2110/2009 dated 25.2.2013 subject to the condition that, if at all any enhancement is ordered, MACA No.1838/2009 -6- the appellant will not be entitled to get interest for the period of delay. The above order is made absolute. In view of the above order, the appellant will be entitled to interest for the additional compensation awarded in this appeal from the date of filing of the claim petition till deposit, excluding the aforesaid delay of 540 days in filing this appeal. Since the insurance coverage of the vehicle is not in dispute, the 2nd respondent insurer shall deposit the due amount before the Tribunal within a period of one month from the date of receipt of a certified copy of this judgment.
The appeal is allowed as above.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
ANIL K.NARENDRAN, JUDGE dsn True copy P.S.to Judge