IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1207 of 2008()
1. ARSAL, S/O.ALAVI, AGED 31 YEARS,
... Petitioner
Vs
1. V.P.ABDUL SALIM, S/O.V.P.MUHAMMED,
... Respondent
2. THE NATIONAL INSURANCE CO.LTD.,
For Petitioner :SRI.K.M.JAMALUDHEEN
For Respondent :SRI.JOE KALLIATH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :27/11/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 1207 OF 2008
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Dated this the 27th day of November, 2008.
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)1389/02.
The claimant sustained injuries in a road accident and he has
been awarded a total compensation of Rs.26,160/- and the
insurance company has been exonerated from the liability on
the ground that the policy does not cover the risk of a pillion
rider.
2. Let me first consider about the liability of the
insurance company. Unfortunately, the Tribunal has noted
the policy as an Act only policy. The policy was made
available to me for perusal by both sides and it is seen that it
is a comprehensive policy and that comprehensive policy also
contains a specific clause II (1)(i) which indicates that any
person carried in the vehicle other than for hire or reward is
also covered by the policy. So the approach of the Tribunal
that it is only an Act only policy and it does not cover the risk
of a person carried in the vehicle, requires interference.
M.A.C.A. 1207 OF 2008
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3. When a comprehensive policy contains a condition
as mentioned above the Division Bench did consider the fact
on the very same clause in the decision reported in New
India Assurance Co. Ltd. v. Hydrose [2008 (3) KHC
522(DB) and held that since there is a specific condition in
the policy and as the terms of contract cover the risk of such
a person insurance company is bound to indemnify. The
decision reported in Tilak Singh’s case [United India
Insurance Co. Ltd. v. Tilak Singh (2006 (2) KLT 884
(SC) refers to a case of an Act only policy where no
additional premium is paid. So far as the present case is
concerned it is a comprehensive policy and that the decision
rendered by the Division Bench of this Court squarely applies
and therefore I vacate the finding of the Tribunal and hold
that the insurance company is bound by the terms of policy
to indemnify the owner.
4. The next question is regarding the quantum of
compensation. A perusal of the award would reveal that the
claimant sustained a lacerated wound of 2 cms. and there
M.A.C.A. 1207 OF 2008
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was an amputation at the level of proximal phalanx. The
claimant was aged 25 years and the income was fixed at
Rs.16,000/- per annum. It appears to be totally inadequate
considering the fact that the accident took place in 2002. I
fix the income at Rs.2,000/- per month and when the
disability compensation is fixed at 3% as per the workmen’s
compensation schedule, the annual loss of income will come
to Rs.720/- which when multiplied by 17 it would be
Rs.12,240/-, on deduction of Rs.8,160/- already granted the
additional compensation would be Rs.4,080/-. The young
man at the age of 25 had lost a portion of his little toe and
certainly it will cause him loss of amenities and enjoyment in
life besides limb disfiguration. Therefore I feel this is a fit
case where an amount of Rs.4,000/- at least has to be
awarded towards loss of amenities and enjoyment in life.
Therefore the additional compensation the claimant will be
entitled to will be Rs.8,080/-.
M.A.C.A. 1207 OF 2008
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In the result the MACA is partly allowed and the
claimant is awarded an additional compensation of
Rs.8,080/- with 7% interest. The insurance company is bound
to pay the entire amount awarded including the award
passed by the Tribunal as it is found liable and the insurance
company is directed to deposit the same within a period of
sixty days from the date of receipt of a copy of the
judgment.
M.N. KRISHNAN, JUDGE.
ul/-