IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 MACA.No. 1865 of 2006() ----------------------- OPMV.193/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER ------------------------------------- JINESH, MINOR, REP. BY FATHER PAVITHRAN AS NEXT FRIEND, KURAMBANANGATTU HOUSE, MOOTHEDATHUKAVU KARA, VAIKOM. BY ADV. SRI.T.K.KOSHY RESPONDENTS/RESPONDENTS 2 AND 3: ------------------------------------------------------------- 1. GEORGE JOHN NIDHIRY, VALIYAVEETTIL HOUSE, KURUVILANGAD, PALA. 2. NEW INDIA ASSURANCE CO. LTD., ETTUMANOOR. BY ADV. SRI.M.RAMESH CHANDER FOR R1 SRI.SIJI ANTONY FOR R1 SRI.S.MAMMU FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2008 ALONG WITH MACA NO. 1503 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. Nos. 1865 of 2006 &1503 of 2007 --------------------- Dated this the 15th day of July, 2008 JUDGMENT Both these appeals are preferred against the award passed by the Motor Accident Claims Tribunal, Kottayam, in OP(MV) 193/02. M.A.C.A. No. 1865/06 is preferred by the claimant for enhancement of compensation and M.A.C.A. No. 1503/07 is preferred by the Insurance Company for exoneration of the liability. 2. Heard the counsel for both sides. Let me first consider the question of exoneration of liability of the Insurance Company. Learned counsel for the Insurance Company strongly contends before me that the claimant was a pillion rider and the policy issued was only an Act only policy and therefore in the light of the decision of the apex court in United India Insurance Co. Ltd. v. Tilak Singh [2006 (4) SCC 404] the Insurance Company is to be exonerated from the liability. 3. There cannot be any dispute regarding that proposition of law. But in the case it has to be pleaded that it is only an Act only policy and being a pillion rider it is not covered, for the reason the matter has to be decided on the factual matrix pleaded before the court. Unfortunately not even a remote way pleading is there to show the non liability. Therefore, at this stage this court cannot consider that argument without pleading. Therefore, the said appeal is not entertained. MACA Nos.1865/06 & 1503/07 2 4. Now I will consider the appeal preferred dy the claimant. The claimant was only aged 17 years at the time of the accident. He claimed to be tuition teacher having a monthly income of Rs.2,000/-. The Tribunal had fixed his income at Rs.1,800/- and calculated the compensation. I am surprised how the Tribunal has accepted a 17 year old boy as a teacher that too with an income of Rs.1,800/-. This shows the liberal mindedness of the Tribunal in proceeding to fix the compensation. It is reflected on other counts as well except on the question of explaining the percentage of disability. The Tribunal has awarded Rs.15,000/- for pain and suffering, Rs.5,400/- for three months loss of earning and Rs.2,650/- for medical expenses. The disability certificate produced by the claimant was not accepted by the Tribunal in toto. In spite of 8% disability, the Tribunal accepted 4% disability. I feel even if 2% or 1% is increased, the factum of taking the income and awarding of compensation under other heads appears to be grossly sufficient. Besides the same, the Tribunal has also granted a compensation of Rs.8,000/- for loss of amenities and enjoyment in life. Thus, this is a case where the Tribunal has taken a liberal approach in fixing the compensation which does not call for any interference. Both the appeals are accordingly dismissed. M.N.KRISHNAN, JUDGE vps MACA Nos.1865/06 & 1503/07 3