IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2081 of 2008()
1. BINOY GEORGE, S/O.GEORGE
... Petitioner
Vs
1. GEORGE, S/O.OUSEPH
... Respondent
2. THE ORIENTAL INSURANCE CO.LTD
For Petitioner :SRI.P.V.BABY
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :26/11/2009
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A.No.2081 OF 2008
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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
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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
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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.
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Disposed of accordingly.
M.N. KRISHNAN, JUDGE
cl
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