The New India Assurance Company … vs T.R.Gopi on 14 July, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 64 of 2007()


1. THE NEW INDIA ASSURANCE COMPANY LTD.,
                      ...  Petitioner

                        Vs



1. T.R.GOPI, S/O.RAGHAVAN,
                       ...       Respondent

2. M.M.ABRAHAM, S/O.MATHEW MATHEW,

                For Petitioner  :SRI.P.R.RAMACHANDRA MENON

                For Respondent  :SRI.N.SURESH

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

 Dated :14/07/2008

 O R D E R
                            M.N.KRISHNAN, J
                       =====================
                          MACA No.64 OF 2007
                       =====================

                   Dated this the 14th day of July 2008

                                JUDGMENT

This appeal is preferred by the insurance company against the award

of the Motor Accidents Claims Tribunal, Mavelikkara in O.P.(MV)No.1128

of 1996. The Tribunal awarded a compensation of Rs.50,700/- and directed

the insurance company to deposit the amount and seek reimbursement after

satisfaction of the award from the first respondent in the case. It is against

that decision the present appeal is preferred by the insurance company.

2. Heard the counsel for the insurance company. Service on R1 and

R2 is complete and R1 has entered appearance by filing vakalath through

counsel. It can be seen from paragraph 6 of the written statement, which is

made available before me that there is a specific contention “this respondent

is not liable to pay any amount to the petitioner as he was a pillion rider at

the time of the accident”. Suppose the policy issued is only an Act only

policy and additional premium has not been paid to cover the pillion rider

necessarily insurance company will not be liable to pay the amount at all

and therefore they may have to be totally exonerated from the liability and

MACA 64/2007 -:2:-

the question of payment and recovery will not arise. But, unfortunately, the

Tribunal below had lost sight of that contention and had never considered

the same. It requires consideration especially in the light of the authoritative

pronouncement by the Apex Court in Tilak Singh’s case(2006(2)KLT 884

(SC).

Therefore, the award under challenge is set aside in toto and the

matter is remitted back to the Tribunal for fresh consideration. The Tribunal

is directed to consider whether Ext.B1 policy is only an Act only policy and

whether it does not cover a pillion rider and thereafter applying the dictum

laid down in Thilak Singh’s case decide the case in accordance with law.

The insurance company is directed to take out notice to the owner and the

claimant since their rights are affected in the case as they are not properly

represented before this Court. Parties are directed to appear before the court

below on 25.8.2008.

MACA is disposed of as above.

M.N.KRISHNAN, JUDGE

Cdp/-