National Insurance Company Ltd vs Shijo K. on 5 November, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 557 of 2009()


1. NATIONAL INSURANCE COMPANY LTD.
                      ...  Petitioner

                        Vs



1. SHIJO K., KOOTHRAPPALLY ROAD
                       ...       Respondent

2. SURESHKUMAR V.R, VALUCHIRAYIL

3. SUJAKUMARI, KOLLARKULATHIL

                For Petitioner  :SMT.RAJI T.BHASKAR

                For Respondent  :SRI.PHILIP T.VARGHESE

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

 Dated :05/11/2009

 O R D E R
                      M.N. KRISHNAN, J.
                   ...........................................
                   M.A.C.A.No.557 OF 2009
                  .............................................
            Dated this the 5th day of November, 2009

                         J U D G M E N T

This is an appeal preferred against the award of the

Claims Tribunal, Kottayam in OP(MV)No.2438/2004. The

claimant sustained injuries in a road accident and he has

been awarded a compensation of Rs.36,500/= with 7%

interest. The insurance company has challenged the award

on the ground that the policy does not cover the risk of a

pillion rider and therefore, it is entitled to be exonerated from

the liability.

2. The Tribunal considered that point in para-15 of

the award and observed that since the policy is not

produced, the company is labile. But, in the appeal, the

learned counsel for the insurance company has produced a

copy of the policy, which appears to be a package policy.

Just because one policy is a package policy or a

comprehensive policy, it does not ipso facto conclude that

any person is covered under the policy. There are two types

of approach to this matter. One by finding whether there is

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additional premium paid for the coverage and secondly,

whether there are conditions in the policy which makes the

insurance company liable. The two Division Benches of this

Court in the decision reported in New India Assurance

Co.Ltd.v. Hydrose (2008(3) KLT 778) and in Mathew v.

Shaji Mathew (2009(3) KLT 813) did have an opportunity to

consider the conditions and had rendered a decision on the

point. So everything depends upon the conditions of the

policy which unfortunately is neither before me nor before

the court below.

Therefore, the award so far it relates to the inter se

liability between the owner and the insurer is set aside and

the matter is remitted back to the Tribunal with a direction

to permit both the parties to produce both documentary as

well as oral evidence in support of their respective

contentions and then dispose of the matter in accordance

with law. The parties are directed to appear before the

Tribunal on 11.12.2009.

M.N. KRISHNAN, JUDGE

cl

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