IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1155 of 2009()
1. SWAPNA PRASAD, AGED 28 YEARS,
... Petitioner
Vs
1. PRASAD KUMAR, S/O. GOVINDANNAMBIAR,
... Respondent
2. THE NATIONAL INSURANCE CO. LTD.,
For Petitioner :SRI.JACOB ABRAHAM
For Respondent :SRI.LAL GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :23/10/2009
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A.NO.1155 OF 2009
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Dated this the 23rd day of October, 2009
J U D G M E N T
This is an appeal preferred against the award of the
Claims Tribunal, Kozhikode in OP(MV)No.873/2004. The
claimant, a 25 year old lady, sustained fracture in a road
accident and one of her tooth was avulsed and there was a
fracture of one of the incisor. The Tribunal awarded her a
global compensation of Rs.8,000/= and exonerated the
insurance company from the liability and it is against that
decision, the claimant has come up in appeal.
2. Heard the learned counsel for both sides. Let me
first consider about the quantum. The learned counsel had
brought to my notice that Ext.A3 series medical bills
represented a sum of more than Rs.3,000/= for medical
expenses. It has to be accepted for the reason that even the
Tribunal refers to the scan report and the medical bills.
Avulsion of tooth means displacement of tooth from its
original position which means it required correctional
procedure. The repair of the tooth is an expensive treatment
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which one has to undergo. When a 25 old lady sustains
such injuries, certainly there will be a lot of difficulties for
her physically and mentally and therefore taking note of
the entire situation, I am inclined to increase the
compensation by 6,000/=.
3. The next important question is regarding the
liability of the insurance company. The Tribunal repelled
the claim of the applicant on the ground that there is
nothing to prove the payment of the additional premium. It
is true that in United India Insurance Co.Ltd. v. Tilak
Singh (2006 (2) KLT SC) the court was considering the
question of an act only policy and said that status of a
pillion rider being that of gratuitous passenger, he will not
be covered by an act only policy. A Full bench of this Court
in one of the decisions held that in comprehensive policies if
one has to go by the premium unless additional premium is
paid for the coverage one will not be liable. Now there a
situation has also arisen, that is by virtue of the terms
and conditions of the insurance contract, the insurance
company undertakes to indemnify the owner. The terms
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and conditions of the policy has been produced before this
Court and it reads as follows:
"Death of or bodily injury to any
person including occupants carried in the
vehicle (provided such occupants are not
carried for hire or reward) but except so far
as it is necessary to meet the requirements of
the Motor Vehicles Act.”
4. A Division Bench in the decision reported in New India
Assurance Co.Ltd. Hydrose (2008 (3) KLT 778) considered
the clause and held that by virtue of the terms and
conditions, the insurance company is bound to indemnify.
Later, the Division Bench in the decision reported in Mathew
v. Shaji Mathew (2009 (3) KLT 813) considered the
wordings ‘except so far as it is relate’ and held that just
because of the word except is used the benefit which is
conferred cannot be taken away and the benefit given under
the Hydrose’s case has to be extended in such cases as
well. So, in the light of these two authoritative
pronouncements it has to be held that the insurance
company is bound to indemnify the owner. Therefore,
MACA is disposed of as follows:
1. The claimant is awarded an additional compensation
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of Rs.6,000/= with 7.5% interest on the said sum from the
date of the petition till realisation and the respondent
insurance company is directed to pay the amount.
2. The order exonerating the insurance company from
the liability is set aside and the insurance company is bound
to pay the entire amount awarded both under this judgment
as well as the earlier award to the claimant and such
amount shall be deposited within a period of 60 days from
the date of receipt of a copy of this judgment. However,
before the withdrawal of the amount, the appellant has to
file an undertaking affidavit indicating that she has not
received any amount from the owner so far.
Disposed of accordingly.
M.N.KRISHNAN, JUDGE
cl
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