IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 MACA.No. 671 of 2009(G) ------------------------------------ OPMV.1946/2002 of PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER IN OP(MV) -------------------------------------------------------- SATHYAN.V., S/O.CHANDRAN, RESIDING AT PARAKKUNDATHU HOUSE, P.O.NOORAMTHODU, CHIPPILIKKOD THAMARASSERY, KOZHIKODE. BY ADV. SRI.A.V.M.SALAHUDIN RESPONDENT(S): RESPONDENTS IN OP(MV) ----------------------------------------------------------------- 1. BENNY CHACKO, S/O.CHACKO, AGE NOT KNOWN, DEVELOPMENT OFFICER, NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, KANNUR. 2. SHEBY CHACKO, S/O.CHACKO, AGE NOT KNOWN, RESIDING AT ADHIKARATHIL HOUSE, VELLOMKODE P.O., KOZHIKODE. 3. UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE NO.11, P.B. NO.192, SEEMA TOWERS, MAVOOR ROAD, KOZHIKODE. R3 BY ADV. SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tsS A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 671 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 7th day of April, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No. 1946/2002 on the file of the Motor Accidents Claims Tribunal, Kozhikode. In this appeal he challenges the judgment and award of the Tribunal dated March 26, 2008 awarding a compensation of `15,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on March 4, 2002 at about 4 p.m. While the claimant was pillion riding on a motor cycle bearing registration No.KL-13/E 3752, it capsized due to the rash and negligent driving of the second respondent, the rider of the motor cycle. The claimant sustained serious injuries. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 2,00,000/-. MACA 671/2009 2 3. Respondents 1 and 2, the owner and the rider of the offending motor cycle, remained absent before the Tribunal. The third respondent, the insurer of the offending motor cycle, filed a written statement contending that the policy issued in respect of the vehicle is an Act only policy. Exts.A1 to A6 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the second respondent and awarded a compensation of `15,000/- with interest @ 7.5% p.a. from the date of petition till realization. The Tribunal also found that the third respondent was not liable to pay the compensation, as the policy was an Act only policy and the claimant was only a pillion rider of the motor cycle involved in the accident. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. MACA 671/2009 3 5. The following points arise for consideration:- 1) Whether the finding of the Tribunal exonerating the Insurance Company from the liability can be sustained? 2) Whether the claimant is entitled to any enhanced compensation? 6. Point No.1:- The Tribunal exonerated the Insurance Company from the liability on the ground that the policy issued is only an Act only policy, which does not cover the risk of the pillion rider in a two wheeler. When the appeal came up for hearing today, the counsel for the Insurance Company fairly conceded that the policy issued in respect of the vehicle is a package policy, which covers the risk of the pillion rider of a two wheeler. That being so, the third respondent is liable to indemnify the owner of the offending motor cycle. 7. Point No.2:- The next question for consideration is whether the claimant is entitled to any enhanced compensation. The claimant sustained displaced fracture and heel pad avulsion. The Tribunal awarded a total MACA 671/2009 4 compensation of `15,000/-. Taking into consideration the nature of the injuries sustained by the claimant, we feel that an additional compensation of Rs.25,000/- would be reasonable in this case. 8. In the result, the claimant is found entitled to an additional compensation of `25,000/- with interest @ 7.5% per annum from the date of petition till realization and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 671/2009 5