IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1867 of 2009()
1. THE ORIENTAL INSURANCE CO. LTD.
... Petitioner
Vs
1. KANAKA KUMARAN AND OTHERS
... Respondent
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.J.HARIKUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/08/2010
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 1867 OF 2009
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Dated this the 30th day of August, 2010.
J U D G M E N T
This appeal is preferred against the interim award
passed in O.P.(MV)1831/06. The claimant moved an
application for compensation u/s 140 of the M.V.Act on
account of the permanent disability suffered. He was a
passenger in a trekker. The insurance company of the
trekker raised a contention that being an an Act only policy it
is not liable to pay compensation but the learned Tribunal
had stated that there are several decisions which are to the
effect that even as opposed to an an Act only policy,
passengers of a private car are entitled to support a claim for
compensation. I am afraid that the said approach is
incorrect. In Swaran Singh’s case National Insurance
Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) the
Hon’ble Supreme Court has made it clear these defences are
available to the insurance company even under S.163A
cases. Unless there is a liability on the insurance company it
M.A.C.A. 1867 OF 2009
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cannot be fastened on them arbitrarily. In such cases it will
be for the owner to pay the amount. Therefore I set aside
the award and direct the Tribunal to dispose of the matter
within a period of two months from today after hearing all
concerned. I make it very clear let the entire O.P. be
disposed of and not the preliminary question.
Send a copy of the order to the Tribunal for compliance.
M.N. KRISHNAN, JUDGE.
ul/-