IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1688 of 2006()
1. THE ORIENTAL INSURANCE CO.LTD.,
... Petitioner
Vs
1. NASSAR, S/O. MYTHEEN,
... Respondent
2. MYTHEEN, S/O. ALIPAREETH,
3. T.A. MUHAMMED, S/O. ABDUL KHADER
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :29/09/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. No. 1688 OF 2006
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Dated this the 29thday of September, 2008
JUDGMENT
This appeal is preferred against the award passed by the
Motor Accident Claims Tribunal, Muvattupuzha, in OP(MV) 1809/01.
The claimant, who was a pillion rider, sustained injuries in a road
accident. The Tribunal awarded him a compensation of Rs.13,500/-
and affixed the liability on the Insurance Company. It is challenging
the liability of the Insurance Company, the insurer has come up in
appeal.
2. A perusal of para.4 of the award itself would reveal that
there is a specific contention raised by the Insurance Company that
the motor cycle was insured by them under an Act only policy. It
also specifically contended that the policy does not cover the risk of a
pillion rider. A copy of the policy has been produced before the
Tribunal. The Tribunal did not consider that at all.
3. Learned counsel for the Insurance Company has made
available before me a copy of Ext.B1, which would show that the
motor cycle was covered by an Act only policy. The premium
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collected are for liability to public Rs.77/- and additional third party
property damage for an unlimited amount. So this policy does not
cover the risk of a pillion rider. There is nothing to show that just like
any comprehensive policy there is any condition whereby under the
contract of insurance there is an independent coverage. The Apex
court in the decision reported in United India Insurance Co. Ltd. v.
Tilak Singh [2006 (4) SCC 404] has held that in an Act only policy
the pillion rider is not covered and his status is that of a gratuitous
passenger and as per the decision reported in New India Assurance
Co. Ltd. v. Asha Rani [2003 (1) KLT 165 (SC)] it will not cover a
gratuitous passenger. Therefore, the Tribunal has gone wrong in
fixing the liability on the Insurance Company.
Therefore, the appeal is allowed. The Insurance Company
is exonerated from the liability. The claimant is entitled to proceed
against respondents 1 and 2 in the claim petition jointly and
severally.
M.N.KRISHNAN, JUDGE
vps
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