IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 MACA.No. 2141 of 2009(A) --------------------------------- OPMV.2022/2006 of PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S)/PETITIONER IN OP(MV): ----------------------------------------------- PRADEESH, S/O LAKSHMANAN, MUKKATH HOUSE, BEYPORE POST, KOZHIKODE DISTRICT. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S)RESPONDENTS: ---------------------------------------- 1. BALAKRISHNAN U., KADOTHALAKKAL HOUSE, MAVOOR POST, KOZHIKODE. 2. GIREESH K., S/O DIVAKARAN K., KONNAYIL HOUSE, BEYPORE POST, KOZHIKODE. 3. THE NATIONAL INSURANCE COMPANY LTD., 2ND FLOOR, NOOR COMPLEX, P.B.811, MAVOOR ROAD, KOZHIKODE. ADV. SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2141 OF 2009 = = = = = = = = = = = = = = = Dated this the 20th day of November, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV)2022/06. The claimant sustained injuries in a road accident while he was travelling as a pillion rider. The Tribunal awarded him a compensation of Rs.7,437/- and exonerated the insurance company from the liability. It is challenging the exoneration as well as the quantum the claimant has come up in appeal. 2. Heard the learned counsel for the appellant as well as the insurance company. Let me first consider about the quantum. From paragraph 7 of the award it is clear that the claimant had sustained a fracture on the clavicle at sterno clavicular joint. Therefore was treated as an out-patient only and he had expended about Rs.437/- for medical expenses. He was aged 33 years and was working in a harbour. I proceed to fix his compensation as follows. M.A.C.A. 2141 OF 2009 -:2:- 3. Considering the fact that he is a person working in a harbour and as his clavicle is fractured he would have been deprived of doing any work for a period of 6 to 8 weeks for which I award Rs.4,000/- for loss of earnings. I award an additional sum of Rs.300/- towards damage to clothing, Rs.300/- towards extra nutritious food, Rs.6,000/- towards pain and sufferings and Rs.3,000/- towards loss of amenities. I also retain Rs.437/- given as medical bills and Rs.500/- as transport expenses. So the total compensation would come to Rs.14,537/- out of which Rs.7,437/- is granted. So the additional compensation would be Rs.7,100/-. 4. The next question is regarding the liability of the insurance company. In fairness the learned counsel for the insurance company has admitted that the policy taken is a package policy with conditions. As per the clause II(i) the insurance company as per the terms and conditions of the contract had undertaken to cover the risk arising out of the use of a motor vehicle in case of death or bodily injury to a M.A.C.A. 2141 OF 2009 -:3:- person other than for hire or reward. This clause came up for consideration before a Division Bench of this Court reported in New India Assurance Co. Ltd. v. Hydrose (2008 (3) KLT 778). It was held in that case that payment of additional premium is not necessary when the terms and conditions of the contract undertakes to decide the liability. Subsequently, another Division Bench of this Court also had approved the same in the decision reported in Mathew v. Shaji Mathew (2009 (3) KLT 813). Therefore in the light of these two authoritative pronouncements it has to be held that the insurance company is liable. 5. Therefore the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.7,100/- with 7% interest on the said sum from the date of petition till realisation and the finding exonerating the liability of the insurance company is set aside and it is made liable. The insurance company is directed to make payment of the amount already awarded by the Tribunal as well as M.A.C.A. 2141 OF 2009 -:4:- granted by me within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-