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. 2163 of 2010() ----------------------- OPMV.208/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER ------------------------ M.A.RAMESH,AGED 49 YEARS, S/O.M.C.ARAVINDAKSHA PILLAI,C.C.28/251, MUTHEDATH HOUSE,MOONJAMPILLY ROAD, ELAMKULAM,COCHIN-17. BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENTS/ RESPONDENTS -------------------------- 1. V.X.LAL XAVIER,S/O.XAVIER, VALIYAPARAMBIL HOUSE,KATHRIKADAVU,COCHIN-17. 2. M.GIREESH,S/O.MANIYAN,CHERANATTU VEETTIL ERIMAYUR.P.O,PIN-678 546. 3. NEW INDIA ASSURANCE COMPANY LTD, BY ITS REGIONAL MANAGER,REGIONAL OFFICE, KANDOMKULATHY BUILDING, M.R.ROAD,COCHIN-11. ADV. SRI.P.G.GANAPPAN 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.2163 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.208/2002 on the file of Motor Accidents Claims Tribunal, Ernakulam. In this appeal, he challenges the judgment and award of the Tribunal dated August 28, 2008 awarding a compensation of Rs.87,525/- 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 September 25, 2001 at about 4 p.m. : 1. Contusions on both sides of face. 2. Bleeding from the nose 3. Laceration on lower lip. 4. Alveolar fracture of mandibular anterior and right posterior regions. 2. The accident happened while the claimant was travelling in a Maruthi Omni van bearing Reg.No.KL-7/Z 6910 driven by the second respondent along Aluva-Ernakulam NH. When he reached near Ambattukavu temple, the van fell into a gutter and then overturned. MACA.No.2163/2010 2 Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 2,00,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending van remained absent before the Tribunal. The third respondent, the insurer of the offending van filed a written statement admitting the policy, but denied the liability. 4. Exts.A1 to A15 were marked on the side of the claimant before the Tribunal. Ext.B1 was 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 van by second respondent and awarded a compensation of Rs. 87,525/- with interest @ 7.5% per annum from the date of petition till realisation and proportionate cost against respondents 1 and 2. The Tribunal exonerated the third respondent Insurance Company from the liability as the claimant was a gratuitous passenger in the vehicle and the policy does not cover the risk of such a passenger. The claimant has now come up in appeal challenging the quantum of compensation MACA.No.2163/2010 3 awarded by the Tribunal as well as the finding of the Tribunal exonerating the Insurance Company. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The following points arise for consideration : 1. Whether the finding of the Tribunal exonerating the third respondent Insurance Company can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation. 7. The Tribunal exonerated the third respondent Insurance Company on the ground that the claimant was a gratuitous passenger in Maruthi Omni van and that the policy Ext.B1 does not cover the risk of the passenger. 8. When the appeal came up for hearing, it is fairly conceded by learned counsel for the Insurance Company that Ext.B1 policy is a comprehensive policy and the risk of the passenger in the vehicle is also covered under the same. Therefore, the finding of the Tribunal exonerating the third respondent Insurance Company is set aside. The MACA.No.2163/2010 4 third respondent Insurance company is bound to indemnify the owner, the first respondent and the entire compensation has to be paid by the Insurance Company. Point No.2 9. The next question for consideration is whether the claimant is entitled to any enhanced compensation. 10. The Tribunal awarded a total compensation of Rs.87,525/-. The break up of the compensation amount awarded is as under: Medical expenses - Rs.52,525/- Transportation & damage to clothes - Rs. 1,000/- Attendant expenses & extra nourishment - Rs. 3,000/- Shock, pain and suffering - Rs. 15,000/- Loss of earning - Rs. 8,000/- Loss of amenities & convenience - Rs. 8,000/- 11. The Tribunal awarded Rs. 8,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.20,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and MACA.No.2163/2010 5 therefore we are not disturbing the same. 12. There is another aspect in this case. The appeal was filed with a delay of 502 days. The claimant will not be entitled to interest for the said period. 13. In the result, the claimant is found entitled to an additional compensation of Rs. 12,000/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The claimant will not be entitled to interest for the period of delay of 502 days in filing the appeal. The third respondent being the insurer of the offending vehicle shall deposit the compensation awarded by the Tribunal as well as the enhanced compensation with interest and cost 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.2163/2010 6 MACA.No.2163/2010 7