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 14TH JUNE 2010 / 24TH JYAISTHA 1932 MACA.No. 149 of 2009() ---------------------- OPMV.1005/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): PETITIONER ------------------------ SIVANANDAN, S/O.SATHMAN , AGED 32, EDAYATH HOUSE, PULLUVAZHI.P.O. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI RESPONDENT(S): RESPONDENT ------------------------- BAJAJ ALLIANZ, GENERAL INSURANCE CO.LTD, G.E.PLAZA, AIRPORT ROAD,YARWADA, PUNE-411006. ADV. SRI.LAL GEORGE SRI.R.AJITH KUMAR (128/84) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 149 of 2009 ------------------------------------------------------ Dated: JUNE 14, 2010 JUDGMENT BARKATH ALI, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 1005/2003 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, challenges the judgment and award of the Tribunal dated September 22, 2008 awarding a compensation of Rs.4,94,060/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts in brief are these: The appellant/claimant was travelling in a Maruthi Omni Van bearing registration No.CG-04/B- 0731 driven by the 2nd respondent along the Chikola - Raipur road on April 9, 2002 at about 4.30 p.m. Due to the negligence on the part of the driver of the Maruthi Van, it hit against a tree on the side of the road. The claimant sustained serious injuries. The accident occurred due to the negligence on the part of the 2nd respondent. Respondent No.1 the owner, respondent No.2 the driver and respondent No.3 the insurer of the Maruthi Van are jointly and severally liable to pay compensation to the claimant. 3. Respondents Nos.1 and 2 remained absent and were set ex parte by the Tribunal. Respondent No.3, insurer of the offending Van, filed a written statement before the Tribunal admitting the policy. M.A.C.A. 149 of 2009 2 This O.P. Was tried jointly along with OP (MV) No.1890/2005, another claim petition filed by another passenger of the Van. 4. PWs.1 to 3 were examined and Exts.A1 to A15 were marked on the side of the claimant. On the side of the contesting respondent, Ext.B1 was marked. On an appreciation of evidence, the Tribunal awarded a compensation of Rs.4,94,060/- with interest at 7% per annum from the date of petition till the date of award and thereafter at 7.5% per annum till realisation. The Tribunal exonerated the Insurance Company on the ground that the claimant being a gratuitous passenger in a car, his risk is not covered by the policy. The claimant has now come up in appeal challenging the said finding and quantum of compensation awarded by the Tribunal. 5. Heard counsel for the appellant 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 rash and negligent driving of the offending vehicle by the 2nd respondent is not challenged in this appeal. Therefore the only question for consideration is whether the claimant is entitled to any enhanced compensation. 7. The appellant/claimant sustained fracture to spine with paraplegia as revealed from Ext.A7 copy of the medical certificate, M.A.C.A. 149 of 2009 3 Ext.A8 scan report and Ext.A9 treatment-cum-discharge summary. Ext.A1, the certificate of disability issued by the Medical Board shows that the claimant is suffering from Traumatic Paraparesis with bowel bladder problem. His disability was assessed as 60%. 8. The Tribunal awarded a total compensation of Rs.4,94,060/-. The break up of the compensation amount is as under- treatment expenses - Rs.78,610/- loss of earnings - 20,000/- transportation - 6,000/- damage to clothings - 250/- extra nourishment - 5,000/- attendant's charges - 20,000/- pain and suffering - 30,000/- loss of amenities - 40,000/- future treatment - 10,000/- loss of marriage prospects disfiguration etc. - 25,000/- disability - 2,59,200/- 9. Counsel for the appellant sought enhancement of the compensation for the disability caused and on other heads. The Tribunal took the monthly income of the claimant as Rs.2000/-, his disability as 60% and adopted a multiplier of 18 and awarded Rs.2,59,200/- for the disability caused. According to the claimant he was working as a Marketing Manager of Edayath Timber Industries in M.A.C.A. 149 of 2009 4 Pulluvazhi and earning Rs.5000/- per month. Taking into consideration the above fact, we feel that the monthly income of the claimant can be reasonably fixed at Rs.3000/-. The percentage of disability as 60% and the multiplier adopted are not seriously challenged. Thus calculated, towards the disability caused, the claimant is entitled to a compensation of Rs.3,88,800/- (60% of 3000x12x18). As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 10. There is another aspect in this case. The Tribunal exonerated the Insurance Company on the ground that gratuitous passengers in a car are not covered by the Insurance Policy. But it is fairly conceded by the counsel for the Insurance Company that the policy is a “Package Policy”. That being so, the Insurance Company is bound to indemnify respondents 1 and 2. It follows that the entire compensation has to be paid by the 3rd respondent Insurance Company. 11. Thus the claimant is entitled to an additional compensation of Rs.1,29,600/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realisation. The 3rd respondent shall deposit the amount within two months from the date of receipt of M.A.C.A. 149 of 2009 5 a copy of this judgment before the Tribunal with interest and proportionate costs. The award of the Tribunal is modified to that effect. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-