IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 MACA.No. 6 of 2009(A) ----------------------------- OPMV.711/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER -------------------------------- K.V. JOSEPH @ JOSEY, S/O. VAKKACHAN, AGED 40 YEARS, KANAKKASSERY HOUSE, V.P. SASI ROAD, PALLURUTHY VILLAGE, KOCHI-6, ERNAKULAM DISTRICT. BY ADV. SRI.P.M.JOSHI RESPONDENT(S): RESPONDENTS -------------------------------------- 1. ANTONY, S/O. VARGHESE, AGED 35 YEARS, VELIPARAMBU HOUSE, NEAR TO PASHNITHODE BRIDGE, EDAKOCHI VILLAGE, ERNAKULAM DISTRICT. 2. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE-II, JEWEL ARCADE, JAYAM ROAD, COCHIN - 682 011 ADV. SRI.RAJESH THOMAS FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 6 OF 2009 = = = = = = = = = = = = = = = Dated this the 25th 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, Ernakulam in O.P.(MV)711/02. The claimant, a pillion rider sustained injuries in a road accident and had sustained a swelling on the upper half of the left leg and had complaint of pain on the buttocks and superficial abrasion on the left knee. He was an inpatient in the hospital for only one day and the Tribunal has awarded a compensation of Rs.4,000/- and I feel that it is only an adequate compensation which does no call for any interference. 2. The true question is regarding the liability of the insurance company. It can be seen from the materials that the policy is a comprehensive or package policy attached with conditions by which the insurance company has undertaken to pay in respect of death or bodily injury to any person including persons carried in or on the motorcycle M.A.C.A. 6 OF 2009 -:2:- provided such person is carried for hire or reward. The very same 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) and this Court held that by virtue of the terms and conditions of the contract of insurance the insurance company has undertaken to wipe off the liability. In such circumstances the question of additional premium does not arise and therefore held that the insurance company is liable. Later even on an exclusion clause the matter has been considered that 'except so far as the liability under the M.V.Act'. It was considered by a Division Bench of this Court reported in Mathew v. Shaji Mathew (2009 (3) KLT 813) and there also the Court extended the principles laid down in Hydrose' case. So by virtue of these two authoritative pronouncements of this Court the insurance company is liable and therefore finding of the Tribunal that the insurance company has to be exonerated from the liability is set aside and it is made liable to pay. M.A.C.A. 6 OF 2009 -:3:- In the result the MACA is partly allowed and the award exonerating the insurance company from the liability is set aside and the insurance company is made liable and it is directed to pay the amount within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-