IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 MACA.No. 1935 of 2008(D) ---------------------------------- OP.2710/1995 of II ADDL. MACT, KOZHIKODE .................... APPELLANT(S): PETITIONER: ------------------------- T.KOYA, AGED 58 YEARS, S/O.IBRAHIM, THAROL MEETHAL HOUSE, OLAVANNA P.O., KOZHIKODE DISTRICT 673025. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): RESPONDENTS: --------------------------------------- 1. P.AHAMMED KOYA, S/O.MOIDEEN KUTTY, POOLAT HOUSE, PANNIYOORKULAM, PANTHEERANKAVU P.O. KOZHIKODE. 2. BABU, S/O.BAPPUKUTTY, KOLATTU HOUSE, OLAVANNA P.O., PANTHEERANKAVU P.O., KOZHIKODE. 3. UNITED INDIA INSURANCE CO. LTD., V.B.ROAD, R.S.PURAM, COIMBATORE. 4. M.HASSAN, S/O.USSAIN, 6/419, KALIPARAMBIL HOUSE, OLAVANNA P.O., KOZHIKODE. 5. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, KINGSWAY BUILDING, MAVOOR ROAD JUNCTION, KOZHIKODE. ADV. SRI.P.V.KUNHIKRISHNAN FOR R4 SRI.SIBY MATHEW FOR R3 SRI.PHILIP J.VETTICKATTU FOR R3 SRI.P.V.JYOTHI PRASAD FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1935 OF 2008 = = = = = = = = = = = = = = = Dated this the 5th day of February, 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)2710/95. The claimant, a 35 year old man sustained injuries in a road accident while he was travelling as a pillion rider in a motor bike driven by the 4th respondent. When the vehicle reached the place of accident it had collied with a bus. The Tribunal found both the drivers equally negligent but exonerated the insurance company of the motor bike on the ground that the claimant was a pillion rider and awarded a compensation of Rs.46,180/- to the claimant. It is against this finding the claimant has come up in appeal. 2. Heard the counsel for all. Let me first consider about the quantum of compensation. A perusal of the award would reveal that the claimant had sustained fracture on the three ribs and initially he was taken to the Medical College Hospital from where he was taken to the National Hospital M.A.C.A. 1935 OF 2008 -:2:- where he had undergone treatment for about 18 days. The fracture on the rib Nos.5,7 and 8 were confirmed and he was put in ICD tube side with draining. The patient developed complications and he was having fluid in both sides of his chest with haemothorax left side he was having subscutaneous emphysema both sides of his chest. Emphysema is an abnormal condition of the pulmonary system, characterized by over inflammation and destructive changes of alveolar walls, resulting in a loss of lung elasticity and decreased gases. The poor claimant had suffered serious breathing problem and had undergone treatment in the hospital. Definitely, it would have caused him loss of amenities and enjoyment in life. I feel that the amount of Rs.5,000/- awarded under that head is too inadequate and therefore I enhance that compensation by another Rs.5,000/-. For a 35 year old healthy man who was injured in an accident I feel that an amount of Rs.2,000/- can be fixed as monthly income and for four months he can be awarded an additional compensation of Rs.2,000/- which makes him entitled to an additional compensation of Rs.7,000/-. M.A.C.A. 1935 OF 2008 -:3:- 3. Now the question arises regarding the liability. R3 is the insured of the bus and R5 is the insured of the motor bike. R3 is the owner cum driver of the motor bike. In the written statement the insured of the motor bike has never raised a contention that being a pillion rider it is not liable to cover the risk of the claimant. On the other hand it has given a statement admitting the policy. When it is so that too in the earlier years of 1995 that pillion riders were said to be covered the Tribunal without a pleading should not have exonerated the liability of the insurance company namely the 5th respondent. Since the Tribunal has found that the accident had taken place on account of the negligence of both drivers the insurance company namely R3 and R5 are liable to pay in equal proportion, i.e. the compensation awarded including the additional compensation that is allowed. In the result the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.7,000/- with 7.5% interest on the said sum from the date of petition till the date of award namely 18.1.07 and from 29.8.08 till realisation and respondents 3 and 5 are liable to M.A.C.A. 1935 OF 2008 -:4:- pay the amount in equal halves. It is also made clear the liability is on the 5th respondent to pay 50% of the amount awarded originally as it is bound to indemnify R4, the owner of the motor bike. M.N. KRISHNAN, JUDGE. ul/-