IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 MACA.No. 1155 of 2009() ---------------------------------- OPMV.873/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... PETITIONER/ APPELLANT(S): ------------------------ SWAPNA PRASAD, AGED 28 YEARS, W/O.PRASAD, NISHALAYAM,PUTHIYANGADI POST, PAVANGADU KOZHIKODE. BY ADV. MR.JACOB ABRAHAM RESPONDENT(S): ------------------------- 1. PRASAD KUMAR, S/O. GOVINDAN NAMBIAR, 8/559, KADALIYADATHU HOUSE, PUTHIYANGADI, ELATHUR, KOZHIKODE. 2. THE NATIONAL INSURANCE CO. LTD., P.B.NO.811, NOOR COMPLEX, ARAYIDATHU PALAM, MAVOOR ROAD,KOZHIKODDE. R2 BY ADV. MR.LAL GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.1155 OF 2009 ............................................. 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 : 2 : M.A.C.A.NO.1155 OF 2009 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 : 3 : M.A.C.A.NO.1155 OF 2009 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 : 4 : M.A.C.A.NO.1155 OF 2009 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 : 5 : M.A.C.A.NO.1155 OF 2009