IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 MACA.No. 2775 of 2008() ---------------------------------- OPMV.1229/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER ------------------------------------- BIJU, S/O EZHAPARAMBIL MATHEW, AMBANOLY DESOM, VELLIKULANGARA VILLAGE & P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. MR.P.V.BABY MR.A.N.SANTHOSH RESPONDENTS/RESPONDENTS IN OP(MV) ------------------------------------------------------------- 1. WILSON P.L, S/O.PULLOKKARAN LONAPPAN, CHAIPINKUZHY, P.O.VEERANCHIRA. 2. SIJO, S/O.MORELY KOCHAPPAN, THOOMPAKKODE PARIYARAM. 3. THE ORIENTAL INSURANCE CO.LTD, SOUTH JUNCTION, CHALAKUDY.P.O. R3 BY MR.MATHEWS JACOB, SENIOR ADVOCATE, ADV. MR.P.JACOB MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.2775 OF 2008 ............................................. 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 : 2 : M.A.C.A.NO.2775 OF 2008 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 : 3 : M.A.C.A.NO.2775 OF 2008 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 : 4 : M.A.C.A.NO.2775 OF 2008