Allowed

A.X.Benny v. Wilson and Others

Kerala HC7 Oct 2016MACA/179/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed the Motor Accidents Claims Appeal, correcting the Tribunal's finding that the insurance company was not liable by clarifying the policy covered pillion riders. The Court enhanced the compensation award from Rs. 10,818 to Rs. 16,068 by adjusting income estimates and increasing damages for pain and suffering, ordering the insurer to deposit the amount.

What did the court decide?

Compensation enhanced to Rs. 16,068/- with 8% interest; Insurance Company ordered to deposit the amount within 3 months before the Tribunal.

A.X.Benny Vs Wilson and Others — Motor Accident Claims | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 7TH DAY OF OCTOBER 2016/15TH ASWINA, 1938

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MACA.No. 179 of 2009

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JUDGMENT DATED 27-03-2008 IN OP(MV) 492/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANT(S)/PETITIONER::

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A.X.BENNY, AGED 34 YEARS,

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S/O.XAVIER, ALUNGAL HOUSE, KANNAMALY, KUMBALANGI VILLAGE.

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BY ADVS.SRI.P.M.JOSHI SMT.JINU JOHN

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RESPONDENT(S)/RESPONDENTS::

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1. WILSON @ JOSEPH, S/O.XAVIER, ALUNGAL HOUSE, KANNAMALY, KUMBALANGI VILLAGE.

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2. ALEXANDER A.X., THE PROPRIETOR, M/S.COCHIN REFRIGERATION, CHULLIKKAL, KOCHI-5.

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3. THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE NO.4, ERNAKULAM.

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R3 BY ADV. JOHN JOSEPH VETTIKAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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P.V.ASHA J.

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--------------------------------------------

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M.A.C.A.No.179 of 2009

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--------------------------------------------- Dated this the 7^th day of October, 2016

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J U D G M E N T

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The claimant in O.P.(M.V) No.492 of 2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam has filed this appeal seeking enhancement of compensation, while seeking modification of the award to the extent it absolved the Insurance Company from making the payment and directed the owner and rider of the scooter involved in the accident.

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The case of the appellant before the Tribunal was that he met with an accident on 16.04.2001 while pillion ridding on a Scooter bearing Reg.No.KL-7/U-4332. The Tribunal found that the Scooter was not having an insurance policy covering the risk of pillion rider. This was found on the ground that the 3^rd respondent, Insurance Company disowned liability, pointing out that it has not collected any premium to cover the risk of a pillion rider. Observing that the appellant did not produce copy of the policy, the Tribunal held that the Insurance Company is not liable to compensate the injured who was a pillion rider. However, compensation was directed to the respondents 1 and 2, who are the owner and rider of the scooter.

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M.A.C.A.No.179 of 2009

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On a direction from this Court to get instructions regarding the Policy, the learned Standing counsel for the Insurance Company submitted, on instructions, that the Scooter on which the appellant was pillion riding at the relevant time was having comprehensive insurance policy covering the pillion rider also.

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Under the above circumstances the finding of the Tribunal that Insurance Company is not liable to compensate the injured is liable to be vacated and it is declared that the compensation awarded by the Tribunal has to be paid by the 3^rd Respondent-Insurance Company.

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The appellant seeks enhancement in compensation pointing out that the amount awarded is very meager. Tribunal has found that the appellant sustained the following injuries: incised wound on the right eyebrow, contusion over right eye, abrasion on the face, abrasion on the left knee and avulsion of tip of right canon teeth. Petitioner had claimed compensation to the tune of Rs.50,000/-. The Tribunal awarded a total sum of Rs.10,818/-. According to the appellant, he was working as a mechanic at the time of accident and was getting Rs.5000/- as monthly income but the Tribunal reckoned his income as Rs.2000/- alone and granted 15 days' income towards loss of

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M.A.C.A.No.179 of 2009

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earning. Similarly, it is said that a sum of Rs.5000/- alone is awarded towards pain and suffering.

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Heard the learned counsel for the appellant and the learned Standing Counsel appearing for the Insurance Company.

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The claim of the appellant that he was working as mechanic and was getting a monthly income of Rs.5000/- is not controverted effectively by the Insurance Company. Having regard to the rate of wages prevailing at the relevant time, I am of the view that a sum of Rs.2500/- can be reckoned as the monthly income. The Tribunal has awarded compensation under the head loss of earnings for a period of 15 days. Reckoning the income at the rate of Rs.2500/- there will be an enhancement under this head by a sum of Rs.250 making the enhanced compensation as Rs.1250/-.

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The Tribunal has awarded a sum of Rs.5000/- alone towards pain and suffering. Having regard to the nature of the injuries sustained by the petitioner and the difficulties that would have been experienced by the appellant on account of the same, compensation under this head is enhanced to Rs.10,000/-. Thus the appellant will be entitled to an additional compensation of Rs.5,000/- under that count. Accordingly the

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M.A.C.A.No.179 of 2009

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appellant is entitled to a total enhancement by Rs.5000+250=5250/- over the compensation (Rs.10818/-), already awarded. Thus the total compensation to appellant is enhanced to (10818+5250) of Rs.16068/-. The entire compensation will carry interest at the rate of 8% per annum from the date of filing the petition. The Insurance Company shall deposit the same before the Tribunal within a period of 3 months. The award passed by the Tribunal is modified accordingly.

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Appeal is allowed to the above extent. There shall be no

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order as to cost.

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Sd/- P.V.ASHA, JUDGE.

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A.X.Benny v. Wilson and Others

Case brief

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A.X.Benny v. Wilson and Others

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