IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2775 of 2008()
1. BIJU, S/O EZHAPARAMBIL MATHEW,
... Petitioner
Vs
1. WILSON P.L, S/O.PULLOKKARAN LONAPPAN,
... Respondent
2. SIJI, S/O.MORELY KOCHAPPAN, THOOMPAKKODE
3. THE ORIENTAL INSURANCE CO.LTD,
For Petitioner :SRI.P.V.BABY
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :06/10/2009
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A.NO.2775 OF 2008
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Dated this the 6th day of October, 2009
J U D G M E N T
This is an appeal preferred against the award of the
Claims Tribunal, Irinjalakuda in O.P.(MV)No.1229/2003. The
claimant, a pillion rider in a scooter, sustained injuries in
a road accident whereby he had a fracture of both bones of
the leg and the Tribunal has awarded him a compensation
of Rs.47,850/= which includes medical expense of more
than Rs.23,000/=. The insurance company was exonerated
on the ground that the policy is only an act only policy and
therefore in the light of the dictum laid in United India
Insurance Co.Ltd. v. Tilak Singh [2006(2) KLT 884 (SC)],
the company is not bound to indemnify the owner. The
Tribunal awarded the compensation but made it clear that
as there was no disability certificate produced, it is not in a
position to give any compensation for permanent disability.
2. When a person sustains a fracture of both bones of
the leg, that too at the age of 38, whether an amount of
Rs.5,000/= is adequate towards loss of amenities and
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enjoyment may have to be considered and for that purpose,
it is essential that the claimant is examined before the
Tribunal. So, I give an opportunity for the said purpose.
Ordinarily when it is only an act only policy, the concept is
that there is no additional premium paid for the coverage
of any other person and therefore, the insurance company is
not liable. A policy copy is made available before me for
consideration and I find CSI of Rs.1,34,000/= for 3. When
premium is collected by the company, who are these three
persons and under what conditions those three persons
are entitled to be indemnified are all matters which the
insurance company should have explained before the
Tribunal. The observation of the Motor Accidents Claims
Tribunal that no additional premium is paid does not appear
to be correct in the light of this entry. So, it requires
consideration at the hands of the Tribunal.
3. Therefore, the award under challenge is set aside
and the matter is remitted back to the Tribunal for a fresh
consideration to consider whether any further amount has
to be granted towards loss of amenities and enjoyment
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and further whether the policy covers the risk of a pillion
rider. For this purpose, the insurance company as well as
the claimant are permitted to adduce both documentary as
well as oral evidence in support of their respective
contentions and the matter be disposed of in accordance with
law. The parties are directed to be present before the
Tribunal on 20.11.2009 and the claimant is directed to take
fresh notice to the owner at least so that he can also be
heard before a final decision is taken in the matter.
Disposed of accordingly.
M.N.KRISHNAN, JUDGE
cl
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