IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 MACA.No. 661 of 2007() --------------------------------- OPMV.106/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): CLAIMANT ------------------------ T.N.RAGHU, S/O.LATE NARAYANAN NAIR, AGED.44, KRISHNA VILASAM (H), MELPURAPUZHA KARA, PURAPPUZHA VILLAGE, THODUPUZHA. BY ADV.MR.K.R.SUNIL RESPONDENT(S):RESPONDENTS ---------------------------- 1. JAYAKUMAR, S/O.KRISHNAN NAIR, KALAPPILLIL HOUSE, CHOORALLOOR KARA, PURAPPUZHA VILLAGE. 2. MR.JUBASH GEORGE, THALIPARAMBIL HOUSE, EZHUMUTTAM.P.O.,THODUPUZHA. 3. THE ORIENTAL INSURANCE CO.LTD., REP.BY ITS MANAGER, THODUPUZHA BRANCH. ADV. MR.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.661 OF 2007 ............................................. Dated this the 16th day of September, 2009 J U D G M E N T This is an appeal preferred aganst the award of the Claims Tribunal, Thodupuzha in OP(MV)No.106/2004. The claimant, a salesman in a toddy shop, sustained injuries in a road accident while he was travelling as pillion rider in a motor bike. The Tribunal fixed a compensation of Rs.81,200/= and directed respondents 1 and 2 to pay the amount and exonerated the insurance company from the liability. It is against that award challenging the quantum as well as exoneration of the liability of the insurance company, the claimant has come up in appeal. 2. Heard the learned counsel for the appellant as well as the insurance company. Respondents 1 and 2 had chosen to remain ex-parte before the Tribnual and continues to do so in spite of the service of notice in the delay condonatin applicaton. A perusal of the award would reveal that the claimant had sustained fracture of both bones of the left forearm besides an abrasion. He had undergone : 2 : M.A.C.A.NO.661 OF 2007 prolonged hospitilisation and a medical borad had certified his disability at 14%. But the Tribunal took it only at 8% and fixed the compensation. The Tribunal fixed the income at Rs.2,500/= and then also granted a reasonable amount for pain and sufferings, treatment expenses, loss of earnings etc. 3. I feel, a little modification can be done by enhancing the percentage of disability to 10% though the medical board has fixed it by 14% for the reason that the medical board only suggested that there is some pain at the fracture side and feeling of weekness on the left upper limb and swelling therein. When the disability is fixed at 10% and the income is taken at 2,500/= per mensem and the multiplier adopted is 15 is used the disability compensation has come to Rs.45,000/= in stead of Rs.36,000/=. Therefore, the claimant is entitled to an additional compensation of Rs.9,000/= in this case. 4. So far as the liability is concered, the Tribunal has dealt with the same in Para-15 of the award. Ext.B1 is the policy issued by the insurnace company and it is only an act only policy. In the light of the dictum laid down in Tilak : 3 : M.A.C.A.NO.661 OF 2007 singh's case by the Apex Court, a pillion rider is not covered in an act only policy for the reason that the insurance policy did not cover the risk of death of or bodily injury to a gratuitous passenger. The status of a pillion rider is that of a gratuitous passenger. 5. In the result, the appeal is partly allowed and the claimant is awarded an additional compensation of Rs.9000/= with 6% interest on the said amount from the date of the petition till realisation and respondets 1 and 2 are jointly and severaly liable to pay the amount. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 4 : M.A.C.A.NO.661 OF 2007