IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 MACA.No. 2081 of 2008() ----------------------- O.P.M.V.950/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/ PETITIONER IN OP(MV):- ----------------------------------------- BINOY GEORGE, S/O.GEORGE MANJALY HOUSE, MALAYAMPARAMBU, WEST CHALAKUDY VILLAGE, CHALAKUDY P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. MR. P.V.BABY MR. A.N.SANTHOSH RESPONDENTS/ RESPONDENTS IN OP(MV):- ------------------------------------------------- 1. GEORGE, S/O.OUSEPH MANJALY HOUSE, MOONJELY DESOM, CHALAKUDY. 2. THE ORIENTAL INSURANCE CO.LTD SOUTH JUNCTION, CHALAKUDY. ADV. MR. GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... M.A.C.A.No.2081 OF 2008 ............................................. Dated this the 26th day of November, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Irinjalakkuda in OP(MV)No.950/2002. The claimant sustained injuries in a road accident and he has been awarded a compensation of Rs.34,000/= and the insurance company has been exonerated from the liability on the ground that no additional premium is paid as the comprehensive policy will not cover the risk of a pillion rider. It is against that decision, the claimant has come up in appeal for enhancement as well as for challenging the finding of exoneration of the liability. 2. Heard the learned counsel for the appellant as well as the insurance company. A perusal of the award coupled with copy of the disability certificate would reveal that the claimant had sustained fracture of the clavicle as well as fracture of distal end of left radial and ulnar styloid. The disability certificate would reveal that clinically there is a gap in the lateral third of the left clavicle and partial : 2 : M.A.C.A.No.2081 OF 2008 ankylosis. Radiologically there is non union of the fracture of the clavicle. Considering all these facts, the doctor had assessed the disability. It may not be proper to throw out the disability certificate on the ground that the doctor has not been examined. At least the Tribunal should have taken a minimum percentage of disability and I take it as 3% and calculate the compensation. The Tribunal has fixed the income at Rs.24,000/= per annum. When the disability is taken as 3% and the multiplier to be used as per Sarla Verma v. Delhi Transport Corporation (2009 ACJ 1298) is 18, the disability compensation would come to Rs.12,960/= which I round as Rs.13,000/=. I feel Rs.2,000/= more has to be given towards loss of amenities thereby enhancing the compensation by Rs.15,000/=. 3. The next point for consideration is regarding the liability of the insurance company. Admittedly it is a package policy. The package policy contains a condition under Section II(i) that the insurance company has undertaken to cover the liability of a person in case of death or bodily injury arising out of the use of motor vehicle other than for hire or : 3 : M.A.C.A.No.2081 OF 2008 reward. Subsequent to 2001, an additional clause is incorporated “except so far as it is necessary to meet the requirements of the the Motor vehicles Act”. Both these clauses had come up for consideration before two Division Benches of this Court in the decision reported in New India Assurance Co. Ltd. Hydrsoe (2008 (3) KLT 778) and Mathew V. Shaji Mathew (2009(3) KLT 813). In both these cases the Division Benches took the view that since the contract of insurance by virtue of the conditions cover the risk of a person travelling in the motor vehicle other than for hire or reward, no separate premium is necessary to cover such risks. In the light of these authoritative pronouncements it has to be held that the insurance company is liable to pay. 4. In the result, the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.15,000/= with 7% interest on the said sum from the date of the petition till realisation and the insurance company is directed to deposit the said amount as well as the original amount awarded within a period of 60 days from the date of receipt of a copy of this judgment. : 4 : M.A.C.A.No.2081 OF 2008 Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 5 : M.A.C.A.No.2081 OF 2008