Insurance companies are liable for compensation even if the claimant was a gratuitous passenger, with the ability to recover from the vehicle owner post-payment.

JUDGMENT :

M.B. SNEHALATHA, J.

1. The claimant in OP(MV).No.549/2009 on the file of the Motor Accidents Claims Tribunal, Thodupuzha has filed this appeal seeking enhancement of compensation awarded by the Tribunal and also challenging the finding of the Tribunal exonerating R2 insurance company from paying the award amount.

2. According to the appellant/claimant, on 13.09.2007 at around 7.30 p.m. while he was travelling in a pick-up van bearing registration No.KL-6D/7531, accompanying the goods of the employer and when it reached at Kadamakuzhy, the pick-up van capsized due to the rash and negligent driving of the driver of the said vehicle. In the accident, the appellant/claimant sustained grievous injuries. R1 is the owner cum driver of the offending vehicle. R2 is the insurer. R1 and R2 are liable to pay compensation.

3. Before the Tribunal, R1 remained absent and he was set ex-parte.

4. R2 insurance company filed written statement contending that claimant was a gratuitous passenger, who was travelling in the plat-form of the vehicle and therefore, insurance company is not liable to indemnify the 1^st respondent. Further it was contended that the amount claimed under various heads are excessive.

5. By the impugned award, the Tribunal awarded a sum of Rs.1,37,400/- as compensation with interest at the rate of 7% per annum and R1 was directed to pay the amount. It was held that R2 is not liable to indemnify R1, who was the owner cum driver and there was a clear violation of permit and policy issued to R1.

6. The claimant has preferred this appeal contending that the amount awarded is inadequate; that the amount awarded under all heads are on a lower side and it is not a just and reasonable compensation. It was further contended that the learned Tribunal erred in exonerating the insurance company from liability to pay the compensation amount.

7. Per contra, the learned counsel appearing for the insurance company, submitted that the victim was travelling in the plat-form of the vehicle and therefore, there was violation of policy conditions and accordingly, the learned Tribunal was right in exonerating the insurance company from liability.

8. Heard both sides. Records perused.

9. The accident is admitted. It is also an undisputed fact that the accident occurred due to the rash and negligent driving of R1, who was the owner cum driver of the pick-up van.

10. At first, let us see whether the claimant is entitled to enhanced compensation and if so what is the quantum.

11. According to the claimant, he sustained grievous injuries in the accident and he had to undergo treatment for a long period and on account of the injuries suffered in the accident, he sustained permanent disability.

12. Medical records would show that the claimant sustained Acromio clavicular subluxation and hip fracture, and he had undergone treatment. He has also produced Ext.A14 disability certificate, wherein his whole body disability has been assessed as 13%.

13. The case of the claimant is that he is a catering worker by occupation and he was earning Rs.6,000/- per month. But the absence of any materials to prove the income, the Tribunal fixed his notional income as Rs.3,000/- per month.

14. The learned counsel for the claimant contended that going by the decision of the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited, (2011) 13 SCC 236, the Tribunal ought to have taken at least Rs.6,000/- per month as notional income.

15. In Ramachandrappa [cited supra], the Hon’ble Supreme Court fixed the notional income of a cooli