High Court Kerala High Court

The Oriental Insurance Co.Ltd vs Jayan on 8 January, 2010

Kerala High Court
The Oriental Insurance Co.Ltd vs Jayan on 8 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 267 of 2007()


1. THE ORIENTAL INSURANCE CO.LTD.,
                      ...  Petitioner

                        Vs



1. JAYAN, S/O.SANKARAN,
                       ...       Respondent

2. GOPI.K.S., KURULI HOUSE,

3. P.A.PRAKASAN, S/O.AYYAPPAN,

                For Petitioner  :SRI.GEORGE CHERIAN (THIRUVALLA)

                For Respondent  :SRI.P.V.CHANDRA MOHAN

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :08/01/2010

 O R D E R
                       M.N. KRISHNAN, J.
                = = = = = = = = = = = = = =
                  M.A.C.A. NO. 267 OF 2007
             = = = = = = = = = = = = = = =
        Dated this the 8th day of January, 2010.

                        J U D G M E N T

This appeal is preferred against the award of the Motor

Accidents Claims Tribunal, Thrissur in O.P.(MV)3555/00. The

claimant sustained injuries in a road accident while he was

riding as a pillion rider in a motorcycle. The original owner of

the vehicle is the first respondent in the O.P. He had

transferred the vehicle in favour of the 3rd respondent in the

O.P. and during the pendency of the appeal it appears that

the 3rd respondent died and his legal representative has been

impleaded as R4. Now the question for consideration is that

whether there was a valid coverage for the pillion rider in the

case. In paragraph 6 of the written statement the insurance

company has specifically contended that the policy issued for

R1 is an Act only policy which will not cover the risk of a

pillion rider and hence the 2nd respondent is not liable to

indemnify the claim of the petitioner. So the specific

contention of the insurance company is to the effect that

M.A.C.A. 267 OF 2007
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being an Act only policy a pillion rider is not covered.

Unfortunately the Tribunal did not raise the issue on that

point in order to consider that point to arrive at a decision.

So the matter requires reconsideration at the hands of the

Tribunal. It is true that the Tribunal has already found that

the rider did not have a valid driving licence and therefore

right to recovery against 3rd respondent in the O.P. is

granted. But if there is no coverage then that question may

not arise at all. Since the additional 4th respondent is

impleaded after the death of R3 in claim petition and as the

3rd respondent, he has not entered appearance before this

Court, the insurance company is directed to take out notice

to him and let the matter be heard in accordance with law.

Therefore the award under challenge is set aside so far as it

relates to the liability between the 2nd and 3rd respondent in

the O.P. are concerned and for that purpose let the parties

be permitted to adduce both documentary as well as oral

evidence in support of their respective contentions. Let the

insurance company take out notice to the additional 4th

M.A.C.A. 267 OF 2007
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respondent for a proper disposal of the matter. Parties are

directed to appear before the Tribunal on 19.2.2010.

It is made clear that the presence of the first

respondent in the O.P. need not be insisted as he has already

transferred the vehicle.

M.N. KRISHNAN, JUDGE.

ul/-