IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 MACA.No. 2119 of 2007() ----------------------- OPMV.332/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): APPELLANT/RESPONDENT NO.3 --------------------------------------- M/S.UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, FAIZAL BUILDING, MAIN ROAD, OTTAPALAM. NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, ERNAKULAM. KOCHI-11. BY ADV. SRI.S.MAMMU RESPONDENT(S): PETITIONER AND RESPONDENTS NO.1 AND 2 ---------------------------------------------------- 1. UNNIKRISHNAN.K., S/O.ARUMUGHAN, AGED 58 YEARS, KODUKATTIL HOUSE, NHALAKURUSSI, VELLINEZHI P.O., OTTAPALAM TALUK, PALAKKAD DT. 2. JALEEL, S/O.SAIDALAVI, AGED 23 YEARS, PADINHARETHIL VEEDU, AMBALAPPARA, OTTAPALAM TALUK, PALAKKAD DT. PIN 679 512. 3. SAIDALAVI, S/O.UNNENKUTTY, AGED 70 YEARS, PADINHARETHIL VEEDU, AMBALAPPARA, OTTAPALAM TALUK, PALAKKAD DT. PIN.679 512. ADV. SRI.K.B.ARUNKUMAR FOR R1 SRI.SANTHEEP ANKARATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/11/2010 ALONG WITH MACA NO. 635 OF 2008 & MACA NO. 982 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos. 2119 OF 2007 & 635, 982 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of November, 2010 JUDGMENT Barkath Ali, J. All these appeals are directed against the judgment and award of Motor Accidents Claims Tribunal, Ottapalam in O.P.(MV)No.332/2004 dated July 10, 2007 awarding a compensation of Rs. 1,15,854/- for the loss caused to the claimant on account of the injury sustained by him in a motor accident. M.A.C.A.No.635/2008 is filed by the claimant claiming enhancement of the compensation amount awarded. M.A.C.A.No.2119/2007 is filed by the third respondent in the O.P., Insurance Company, denying their liability on the ground that claimant was a gratuitous passenger in a goods vehicle whose risk is not covered by the policy issued by it. M.A.C.A.No.982/2008 is filed by respondents 1 and 2 in the O.P., the owner and the driver of the offending vehicle, challenging the finding of the Tribunal in so far as it granted recovery right to the Insurance Company. 2. The accident happened while the claimant was travelling in a pick-up van bearing Reg.No.KL 9/J 2529 from Cherpulassery to MACA.Nos. 2119/07 & 982,635 of 2008 2 Ambalappara on December 26,2003 at about 8.30 a.m. and when he reached at Kakkathodu, due to the negligence of the driver of the pick- up van, it capsized on the side of the road. The claimant sustained the following injuries in the accident : Fracture left ulna, fracture left radius, lacerated wound left forehead, multiple abrasions, contusion, CT scan showed subarachnoid haemorrhage. 3. Alleging negligence against the first respondent in the O.P., the driver of the offending pick-up van, the claimant filed the O.P. before the Tribunal claiming a compensation of Rs. 1,50,000/-. 4. Respondents 1 and 2 in the O.P., the driver and the owner of the offending pick-up van filed a written statement admitting the accident, but denied the liability. The third respondent, the insurer of the offending pick-up van filed a written statement admitting the policy and further contended that as the claimant is a gratuitous passenger in a goods vehicle whose risk is not covered by the policy issued and that therefore the third respondent is not liable to indemnify the owner of the offending vehicle, the second respondent in the O.P. 5. This O.P. was jointly tried along with other two O.Ps. filed MACA.Nos. 2119/07 & 982,635 of 2008 3 by the other injured persons in the accident and a common award was passed. Pws 1 to 3 were examined and Exts.A1 to A24 were marked on the side of the claimant before the Tribunal. On the side of the respondents, RW1 was examined and Exts.B1 and B2 were marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the first respondent in the O.P., RW1, the driver of the offending pick-up van and awarded a compensation of Rs. 1,15,854/- with interest @ 7% per annum from the date of petition till realisation and a cost of Rs.1500/-. The Tribunal has also found that the insurer can recover the compensation amount awarded from respondents 1 and 2 in the O.P. as the claimant was a gratuitous passenger in a goods vehicle. The claimant in the O.P. filed M.A.C.A.No.635/2008 seeking enhancement of the compensation. The Insurance Company, third respondent in the O.P. filed M.A.C.A.No.2119/2007 disputing the liability. Respondents 1 and 2, the driver and the owner of the offending pick-up van filed M.A.C.A.No.982/2008 challenging the finding of the Tribunal regarding granting of recovery right to the Insurance Company. MACA.Nos. 2119/07 & 982,635 of 2008 4 6. Heard the counsel for the appellants and the counsel for the respondents. 7. As all these appeals arise out of a common judgment and award of the Tribunal, all these appeals are disposed of by this common judgment. 8. The following points arise for consideration : 1) Whether the finding of the Tribunal that the claimant was a gratuitous passenger in a goods vehicle and therefore his risk is not covered by the insurance policy issued can be sustained ? 2) Whether the finding of the Tribunal that the third respondent in the O.P., the Insurance Company, is entitled to recover the compensation amount awarded from respondents 1 and 2 in the O.P. can be sustained ? 3) Whether the claimant is entitled to any enhanced compensation ? 9. We shall first consider whether the claimants are entitled to any enhanced compensation. 10. The Tribunal awarded a total compensation of Rs. 1,15,854/-. The break-up of the compensation awarded is as under : Disability - Rs. 76,800/- Medical bills - Rs. 12,004/- MACA.Nos. 2119/07 & 982,635 of 2008 5 Bystander expenses - Rs. 2,550/- Transportation exp. - Rs. 2,000/- Extra nourishment - Rs. 2,000/- Damage to clothes - Rs. 500/- Pain and suffering & Loss of amenities of life- Rs.20,000/- 11. The Tribunal took the monthly income of the claimant as Rs.2,000/- and took the percentage of disability as 40% and adopted a multiplier of 8 and awarded Rs. 76,800/- for the disability caused to the claimant. According to the claimant, he was a concrete worker earning Rs. 5,000/- per month. But except his interested version, there is no other evidence to prove his income. Therefore, the Tribunal is perfectly justified in accepting his monthly income as Rs. 2,000/- . As he was 58 years old, the multiplier adopted by the Tribunal as 8 is just and reasonable. PW2, the Eye Specialist, has given evidence to the effect that there is visual disability of 50%. Taking into consideration the nature of the injury sustained by the claimant, we feel that the percentage of disability as 40% taken by the Tribunal is reasonable. Therefore, we are of the view that the compensation awarded by the Tribunal for the disability caused is just and reasonable. 12. The Tribunal awarded Rs. 20,000/- for the pain and MACA.Nos. 2119/07 & 982,635 of 2008 6 suffering endured by the claimant. Taking into consideration the nature of the injuries sustained by him, we feel that a compensation of Rs. 30,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 13. The next question for consideration is whether the finding of the Tribunal that the claimant was a gratuitous passenger in a goods vehicle and that therefore his risk is not covered by the Insurance policy can be sustained. It is admitted by the counsel for the Insurance company that the risk of one of the passengers is covered by the policy. The evidence of PW1, the claimant in this case and PW3, another injured person, shows that claimant was inside the cabin of the offending goods vehicle. Therefore, we are of the view that the risk of the claimant is covered by the policy issued in respect of the offending vehicle. That being so, the finding of the Tribunal that the risk of the claimant is not covered by the Insurance policy in respect of the offending vehicle cannot be sustained and is hereby set aside. It follows that the Insurance company is bound to indemnify the first MACA.Nos. 2119/07 & 982,635 of 2008 7 respondent, the owner of the offending vehicle and is not entitled to recover the amount from him. That being so, M.A.C.A.No.982/2008 has to be allowed. 14. In the result, claimant is found entitled to an additional compensation of Rs. 10,000/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The third 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 finding of the Tribunal that the Insurance Company is entitled to recover the amount from respondents 1 and 2 in the O.P. is set aside. M.A.C.A.No.635/2008 is disposed of as found above. M.A.C.A.No.982/2008 is allowed. M.A.C.A.No.2119/2007 is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.Nos. 2119/07 & 982,635 of 2008 8 MACA.Nos. 2119/07 & 982,635 of 2008 9