IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1865 of 2006()
1. JINESH, MINOR,
... Petitioner
Vs
1. GEORGE JOHN NIDHIRY,
... Respondent
2. NEW INDIA ASSURANCE CO. LTD.,
For Petitioner :SRI.T.K.KOSHY
For Respondent :SRI.M.RAMESH CHANDER
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :15/07/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. Nos. 1865 of 2006 &1503 of 2007
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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