IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 MACA.No. 564 of 2009() --------------------------------- OPMV.739/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR .................... APPELLANT/ORIGINAL PETITIONER: --------------------------------------------------- FAZEEM. M.A., S/O.ABDULREHMAN, MATTAPPILLY HOUSE, EDAVANAKKAD P.O., KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. MR.G.BALAMURALEEDHARAN (PARAVUR) MR.MATHEWS V.JACOB (PARAVUR) MR.N.T.NANDAKUMAR (PARAVUR) RESPONDENTS/ORIGINAL 1ST AND 2ND RESPONDENT: ------------------------------------------------------------------------------- 1. HANEESH. K.A., S/O.ASHARAF, KUNNAPPILLY HOUSE, ARAKKAKADAVU, VENNALA P.O., KOCHI-28, ERNAKULAM DISTRICT. 2. NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, MYDHILY MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, KOCHI-25, ERNAKULAM DISTRICT. R2 BY ADV. MR.LAL GEORGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 564 OF 2009 = = = = = = = = = = = = = = = Dated this the 13th day of October, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, North Paravur in O.P.(MV)739/04. The short point that arise for determination is whether the Tribunal was right in exonerating the insurance company of the liability in the light of the fact that there was a package policy issued to the vehicle. The Tribunal found that no additional premium is collected and therefore there is no wider coverage and therefore applying the dictum laid down in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh)2006 (2) KLT 884(SC) and considering the claimant as a gratuitous passenger it negatived the liability of the insurance company. It is against that decision the claimant has come up in appeal. The learned counsel for the appellant submits that by virtue of the terms and conditions of the policy the insurance company is bound to indemnify the insured. Learned counsel for the insurance company M.A.C.A. 564 OF 2009 -:2:- vociferously argued that the claimant cannot even maintain an appeal and she does not know whether the claimant has already realised the amount from the owner. I do not find any embargo imposed on the claimant in filing an appeal whereas such is imposed on the insurance company and the owner. Whether a Governmental institution is bound to pay the amount, it is certain that it is very easily possible to recover it from it than from a private party. Therefore I hold that the appeal is maintainable. It is true that the claimant cannot realise the amount twice, one from the owner and one from the insurance company and therefore before taking the amount from the court I direct the claimant to file an affidavit to that effect. 2. Now the next question is regarding the liability. It is a package policy. Package policies are accompanied by conditions. The conditions are S.II(i) and (ii). It is seen that death or bodily injury caused to a person carried in a vehicle other than for hire or reward is undertaken by the insurance company to be indemnified. In some of the policies when M.A.C.A. 564 OF 2009 -:3:- the words “except so far as it relates to the Motor Vehicles Act” is also interpreted. Both these provisions came up for interpretation and consideration before two Division Benches of this court in New India Assurance Co. Ltd. v. Hydrose (2008 (3) KLT 778) and Mathew v. Shaji Mathew (2009 (3) KLT 813). i.e, in Hydrose's case it was held by this Court that when the conditions of the policy itself covers the risk of a person, then no additional premium is necessary and in the other decision it has been held that merely because of the addition of words 'except so far as' is there it will not deprive the benefit conferred by the decision in Hydrose's case. Or in other words when the conditions of policy clearly undertakes then insurance company is bound to pay. Then they cannot get out of that liability and therefore in the light of these two pronouncements of this Court I hold that the insurance company is bound to indemnify. In the result the MACA is partly allowed and the finding that the insurance company is not liable is vacated and it is M.A.C.A. 564 OF 2009 -:4:- made liable to pay and directed to deposit the amount within sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-