IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 MACA.No. 2125 of 2008() ----------------------- OPMV.187/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- LIJU POULOSE, S/O PHILIPOSE, MOOSAPPILLIL(H), MANIVAYA, POOMALA P.O., S.BATHERY, S.BATHERY TALUK, WAYANAD DISTRICT. BY ADV. SRI.M.C.ANTONY RESPONDENT(S): RESPONDENTS -------------------------- 1. DINEESH C.B., S/O BHASKARAN, AGE NOT KNOWN, CHANDATTIL(H), POOMALA P.O., S.BATHERY TALUK, WAYANAD DISTRICT. 2. THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., KALPETTA, KALPETTA POST. ADV. SMT.CELINE JOSEPH FOR R1 SRI.P.JAYASANKAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2125 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.187/1005 of Motor Accidents Claims Tribunal, Kalpetta,Wayanad challenges the judgment and award of the Tribunal dated November 14, 2006 awarding a compensation of Rs. 27,560/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : On January 12, 2005 at about 6.15 p.m., the claimant was pillion riding on a motor cycle bearing Reg.No.KL-12B/3583 from Sulthan Bathery to Poomala. The motor cycle was ridden by the first respondent. When he reached near Poomala junction, to avoid hitting a dog, first respondent suddenly applied the break as a result of which the claimant fell down and sustained serious injuries. According to the claimant, accident occurred due to the negligence on the part of the first MACA.No.2125/2008 2 respondent. First respondent as the rider cum owner and second as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. 3. First respondent, the owner cum rider of the offending motor cycle filed a written statement admitting the accident, but denied the liability. The second respondent, the insurer of the offending motor cycle, filed a written statement admitting the policy. 4. Claimant was examined as PW1 and Exts.A1 to A7 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent riding of the offending motor cycle by first respondent and awarded a compensation of Rs. 27,560/- with interest @ 6% per annum from the date of petition till realisation. The Tribunal exonerated the second respondent, the insurer of the offending vehicle, on the ground that the risk of the pillion rider was not covered by the policy. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal and also the above MACA.No.2125/2008 3 finding of the Tribunal exonerating the second respondent. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not challenged in this appeal. Therefore, the main question which arises for consideration is whether the claimant is entitled to any enhanced compensation. It has also to be considered whether the risk of the pillion rider is covered by the Insurance Policy of the offending vehicle. 7. The claimant sustained the following injuries as revealed from Ext.A3, the copy of the wound certificate : Bruise and contusion left thigh and fracture of left femur, Bruise left arm left elbow and forearm. Ext.A6 is the certificate issued from Leo Hospital, Kalpetta. Ext.A7, the certificate of disability issued from the hospital shows that the claimant has a disability of 15%. MACA.No.2125/2008 4 8. The Tribunal awarded a total compensation of Rs.27,560/-. The break up of the compensation awarded is as under : Disability - Rs. 18,360/- Transport to hospital - Rs. 600/- Extra nourishment - Rs. 500/- Damage to clothing - Rs. 300/- Bystander's expenses - Rs. 300/- Medical expenses - Rs. 500/- Pain and suffering - Rs. 7,000/- 9. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. 10. The Tribunal took the disability as 10% and fixed the monthly income of the claimant as Rs. 900/- and adopted a multiplier of 17 and awarded Rs. 18,360/- for the disability caused. The claimant claims to be a computer student aged 22. Therefore we feel that his monthly income can be reasonably fixed at Rs. 1500/-. The percentage of disability and the multiplier adopted by the Tribunal are not seriously challenged. Therefore, for the disability caused, the claimant is entitled to a compensation of Rs. 30,600/- ( 10% x 1500 x 12 x 17). Thus on this count, the claimant is entitled to an additional MACA.No.2125/2008 5 compensation of Rs. 12,240/-. 11. The Tribunal has not awarded any compensation for the loss of amenities and enjoyment of life. Taking into consideration the nature of the injury sustained by the claimant, we feel that a compensation of Rs.5,000/- would be reasonable for the loss of amenities and enjoyment of life. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. The Tribunal awarded interest @ 6% per annum from the date of petition till realisation which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. But there was a delay of 423 days in filing the appeal. The claimant is not entitled to interest for the said period. 13. The Tribunal exonerated the second respondent Insurance Company from liability on the ground that the policy in respect of the offending vehicle is an “Act only policy” and that the risk of the pillion MACA.No.2125/2008 6 rider is not covered by the same. Counsel for the second respondent/Insurance Company fairly concedes that the policy is a “Package Policy” and the risk of the pillion rider is covered by the same. Therefore, the entire compensation has to be paid by the insurance company, second respondent. In the result, the claimant is entitled to an additional compensation of Rs. 17,250/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation excluding the 423 days of delay caused in filing the appeal. He is also entitled to proportionate cost. The second respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv MACA.No.2125/2008 7 MACA.No.2125/2008 8