IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 MACA.No. 76 of 2006() --------------------- OPMV.2002/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- P.B.REGHUNATHAN NAIR, AYKKARA RENGU BHAVAN, MALAKKUNNAM P.O., CHHANGANACHERRY. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS/ RESPONDENTS ------------------------- 1. J.SIBICHAN, ARATTUKULANGARA HOUSE, NALUKODI, PAIPPAD. 2. V.M.SALIM, KUTTIKATTU PARAMBU, THRIKKODITHANAM P.O., CHANGANCHERRY. 3. THE UNITED INDIA INSURANCE CO LTD., KOTTAYAM. ADV. SRI.P.MURALEEDHARAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.76 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.2002/1999 on the file of Motor Accidents Claims Tribunal, Kottayam. In this appeal, he challenges the judgment and award of the Tribunal dated January 31, 2004 awarding a compensation of Rs.27,800/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on November 16,1998 at about 5.45 p.m. : Fracture to the proximal phalanx big toe, lacerated wound and vascularity was doubted. He has traumatic amputation of big right toe. 2. The accident happened while the claimant was travelling in a goods autorickshaw baring Reg.No.KL 5G/2556 driven by the first respondent. When he reached at Chingavanam, the autorickshaw capsized. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor MACA.No.76/2006 2 Vehicles Act claiming a compensation of Rs. 2,50,000/-. 3. Respondents 1 and 2, the driver and the owner of the offending autorickshaw remained absent before the Tribunal. The third respondent, the insurer of the offending autorickshaw filed a written statement admitting the accident, but denied the liability. 4. PW1 was examined and Exts.A1 to A11 were marked on the side of the claimant before the Tribunal. Exts.B1 to B3 were marked by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending autorickshaw by first respondent and awarded a compensation of Rs. 27,800/- with interest @ 9% per annum from the date of petition till realisation and a cost of Rs.1500/- against respondents 1 and 2. The Tribunal exonerated the Insurance Company from the liability. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. MACA.No.76/2006 3 6. The accident is not disputed. The following points arise for consideration : 1. Whether the finding of the Tribunal exonerating the Insurance Company can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? 7. The Tribunal exonerated the Insurance Company on the ground that the claimant was a gratuitous passenger in a goods vehicle and the policy issued in respect of the vehicle does not cover his risk as no premium has been paid for the risk of the passenger. For several reasons, we find that the above finding of the Tribunal cannot be sustained. The specific case of the claimant was that the vehicle was hired by the claimant for bringing a Fridge to his residence and after unloading the fridge so brought, the claimant went to Changanassery in the same autorickshaw to go to his shop to pay the hire charges of the vehicle. Ext.B1 is the copy of the private complaint filed by him before the Judicial Magistrate of First Class, Changanassery. He has also testified to that effect before the Tribunal as PW1. As there is no contra evidence on the side of the Insurance Company the above version of PW1 has to be accepted. That being so, he cannot be treated MACA.No.76/2006 4 as a gratuitous passenger in the vehicle. Therefore, his risk is covered by the policy Ext.B3. But there is violation of the condition of the policy as the offending vehicle being a goods vehicle, the driver is not expected to carry any passenger along with him. That being so, the Insurance Company shall pay the compensation amount awarded to the claimant and the third respondent will be entitled to recover the same from the owner of the offending vehicle, the first respondent. 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal awarded a total compensation of Rs.27,800/-. The break up of the compensation amount awarded is as under: Loss of earnings - Rs.4,000/- Treatment expenses - Rs.2,000/- Transportation exp. - Rs.1,000/- Pain and suffering - Rs.10,000/- Disability - Rs.10,800/- 9. The Tribunal awarded Rs.10,800/- for the disability caused taking his disability as 3% as portion of the big toe of the claimant has been amputated. But in Ext.A10 the doctor has certified that he has a disability of 10% which appears to be reasonable. Therefore, the MACA.No.76/2006 5 disability caused to the claimant has to be taken as 10%. 10. The Tribunal has taken the monthly income of the claimant as Rs.2,000/-. According to the claimant, he was running a business earning Rs.5,000/- per month. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs.2,500/-. The claimant was aged 42 at the time of the accident. Therefore, the proper multiplier that has to be adopted is 15. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 45,000/- ( 10% x 2500 x 12 x 15). Thus on this count, the claimant is entitled to an additional compensation of Rs.34,200/-. 11. The Tribunal awarded Rs. 4,000/- towards loss of earnings for 2 months @ Rs. 2,000/- per month. As we have fixed the monthly income of the claimant as Rs. 2,500/-, he is entitled to a compensation of Rs. 5,000/- towards loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 1,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. MACA.No.76/2006 6 12. In the result, the claimant is found entitled to an additional compensation of Rs. 35,200/-. He is entitled to interest @ 9% 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 third respondent will be entitled to recover the same from the owner of the offending vehicle, the first respondent. 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.76/2006 7