IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 MACA.No. 1619 of 2005() ----------------------- OPMV.488/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/PETITIONER: -------------------------- ARAVINDAN, S/O. RAJAN NAIR, PATTAIKKAL VEEDU, NARANGAPOTTA, MANNARKKAD P.O. BY ADV. SRI.C.RAGHAVAN RESPONDENTS/ RESPONDENTS: --------------------------- 1. GOPALAKRISHNAN, S/O.KESAVAN VAIDHIYAN, PADINJAREKKARA VEEDU, VADAKKAMANA P.O., MANNARKKAD. 2. UNITED INDIA INSURANCE CO., MANNARKKAD. BY ADV. SRI. RAJAN P.KALYATH FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1619 OF 2005 --------------------- Dated this the 6th day of October, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Palakkad, in OP(MV) 488/99. The claimant has come up in appeal for enhancement of compensation. 2. Learned counsel for the Insurance Company would contend that there is some limit of its liability in this case. The claimant in the case sustained injuries in a road accident. He had suffered fracture of the vertebra. On account of the same, he was in the hospital for about six days and the Tribunal awarded him a total compensation of Rs.28,000/-. 3. Learned counsel for the appellant would contend that the compensation awarded is inadequate. The Tribunal should have given full disability compensation to him. Though the disability was assessed at 9%, the Tribunal took it only as 4%. Similarly for pain and suffering the Tribunal had awarded Rs.6,000/-. I feel a better compensation can be awarded to the claimant by enhancing the compensation for pain and suffering by Rs.2,000/- and another sum of Rs.5,000/- for loss of amenities and enjoyment in life. Therefore, the claimant will be entitled to an additional compensation of Rs.7,000/- making the total compensation to Rs.35,000/-. 4. Now comes the legal hurdle. The vehicle involved in the accident was only a two wheeler. Two wheeler is expected to carry only MACA No. 1619/05 2 two persons. Admittedly there were three persons. The honourable Apex Court had considered this question of overloading in the decision reported in National Insurance Co. Ltd. v. Anjana Shyam & Ors. [2007 AIR SCW 5237]. It was a case where a bus got involved in an accident which is allowed to carry only 42 passengers in it. There were 90 passengers in the bus. Many of them died and so many people sustained injuries in the accident. The Insurance Company claimed total exoneration of the liability. The Apex Court held that there cannot be a total exoneration of liability of the Insurance Company but limited its liability to 42 persons who are covered by the policy. Then the question arose as to how this will be apportioned among the 42 persons. The Apex Court found a solution and ordered to take the highest of the 42 awards, add it up, then work out the percentage of compensation of each case and direct the Insurance Company to pay that percentage and then fix the balance liability on the owner and driver of the vehicle. In the light of this decision the same principle has to be followed in this case also. At the most, only one pillion rider can be covered. But there were two pillion riders. By enhancement of compensation Rs.35,000/- is given to the claimant in this case and Rs.14,250/- is given to the other case. So it will come to a total amount of Rs.49,250/-. The highest of the award is Rs.35,000/-. Therefore working out the percentage, the appellant herein will be entitled to 71% and the MACA No. 1619/05 3 other claimant will be entitled to 29%. When it is worked out, 71% of 35,000/- would come to Rs.24,850/-. So the liability of the Insurance Company would be to pay Rs.24,850/- with interest and the balance compensation has to be paid by the owner and driver. Therefore the appeal is disposed of as follows. The appellant herein is awarded an additional compensation of Rs.7,000/-. The liability of the Insurance Company is limited to Rs.24,850/- with 6% interest from 28.4.99 till realisation. The balance amount of Rs.10,150/- with 6% interest can be realised by the claimant from the owner of the vehicle namely the 1st respondent. If the Insurance Company has already deposited the amount of Rs.24,850/- with 6% interest, then the claimant will be entitled to proceed only against the owner for realisation of the balance amount. M.N.KRISHNAN, JUDGE vps MACA No. 1619/05 4