IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 MACA.No. 2 of 2009(A) ------------------------ OPMV.1508/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): CLAIMANT ----------------------------- C.P. AZEEZ, S/O. HAMZA, AGED 38, CHERUPURAKKAL HOUSE, BEYPORE POST, KOZHIKODE DISTRICT. BY ADV. SMT.K.V.RESHMI RESPONDENT(S): RESPONDENTS --------------------------------------- 1. BASHEER.P.T, S/O. MUHAMMED, P.T. HOUSE, P.O. BEYPORE, KOZHIKODE. 2. THE NATIONAL INSURANCE CO. LTD., P.B. NO. 811, NOOR COMPLEX, NEAR ARAYADANTHUPALAM, MAVOOR ROAD, KOZHIKODE. ADV. SRI.E.NARAYANAN FOR R1 SRI.LAL GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2 OF 2009 & Cross Objection No.83 of 2009 = = = = = = = = = = = = = = = Dated this the 28th day of January, 2010. J U D G M E N T This appeal is preferred by the claimant for enhancement of the compensation and against the exoneration of the liability of the insurance company. The cross objection is filed against the liability as well as the quantum. 2. Heard the learned counsel appearing for all sides. First, let me decide about the liability which is an issue in the cross objection. The claimant was only a pillion rider to a vehicle driven by the cross objector. The vehicle capsized and the pillion rider sustained injuries. The pillion rider had not contributed anything to the accident. There is no external agency involved in causing the accident. So the accident had taken place only on account of the negligent driving of the cross objector. There is no case that it is an M.A.C.A. 2 OF 2009 & Cross Objection 83/09 -:2:- accident that had taken place on account of any mechanical defect or act of God. Therefore the Tribunal's finding that R1 in the claim petition is liable for negligence is upheld. 3. The 2nd question to be considered is enhancement of compensation. The learned counsel for the appellant had made available before me the wound certificate and discharge summary issued by the Baby Memorial Hospital, Kozhikode. He was admitted on 14.5.2004 and was discharged on 24.5.2004. To start with the C.T. Scan of the head would reveal small extra dural hematoma left temporal. But during the process of treatment he had developed mild facial paresis on the right side. Thereafter he was further treated and at the time of discharge though alert, he was disoriented. Therefore there was some anxiety caused to the claimant on account of the injuries sustained. The Tribunal did not disagree with the production of the bills for Rs.16,439/- but opined that it is a luxurious treatment available and therefore reasonable amount can be granted M.A.C.A. 2 OF 2009 & Cross Objection 83/09 -:3:- towards the treatment. I am unable to digest that part of the order. A person who had a head injury, had to undergo scanning and during the process of treatment he develops paresis and even at the time of discharge he was not totally oriented and in such a situation it is necessary for the members of the family and the hospital authorities to take the maximum care to protect the life of the person that too at the age of 24. Therefore I feel this is a fit case where the entire expenses incurred had to be granted and therefore I allow Rs.6,500/- more towards medical expenses. Considering the subsequent development that had taken place during the course of treatment there should have been real agonizing mental as well as physical difficulties caused to the claimant and therefore I increase the compensation for pain and sufferings by Rs.2,000/- thereby enabling the claimant to have an additional compensation of Rs.8,500/-. 4. Lastly the question of liability of the insurance company. Admittedly as seen from the award the vehicle is M.A.C.A. 2 OF 2009 & Cross Objection 83/09 -:4:- covered by a package policy. So far as the package policy is concerned by virtue of the Circular dated 16.11.2009 of the Insurance Regulatory and Development Authority, it had made it clear that insurance company's liability in respect of occupants carried in a private car and pillion rider carried in a two wheeler is covered under the Standard Motor Package Policy. Further the conditions of such package policy came up for consideration before two Division Benches of this Court in the decisions reported in New India Assurance Co. Ltd. v. Hydrose (2008 (3) KLT 778) and Mathew v. Shaji Mathew (2009 (3) KLT 813). In both these decisions the Court held that by virtue of the terms and conditions of the policy the insurance company is liable to pay the amount. 5. Learned counsel for the appellant and the insurance company in fairness submitted before me that such a contention is not raised in the memorandum of appeal. It has to be stated that the matter is pending adjudication M.A.C.A. 2 OF 2009 & Cross Objection 83/09 -:5:- before a competent Court of jurisdiction and that the Insurance Regulatory and Development Authority itself has clarified regarding the coverage of the vehicle by issuing the clarificatory circular in general, then certainly the conditions are to be extended to the claimant in this case as well. Therefore I find that the insurance company is bound to pay the amount. 6. In the result the MACA is disposed of as follows. (1) The claimant is awarded an additional compensation of Rs.8,500/- with 7% interest on the said sum from the date of petition till realisation. (2) The insurance company is directed to deposit the entire amount of compensation, i.e. coupled with the amount awarded by the Tribunal with interest as it is bound to indemnify the insured namely the cross objector. (3) The amount shall be deposited within a period of sixty days from the date of receipt of a copy of the judgment. M.A.C.A. 2 OF 2009 & Cross Objection 83/09 -:6:- (4) The cross objection is disposed of making it clear that the cross objector is to be indemnified by the insurance company. M.N. KRISHNAN, JUDGE. ul/-