Sukumara Pillai vs K.P.Gopalakrishna Pillai on 28 January, 2009

Kerala High Court
Sukumara Pillai vs K.P.Gopalakrishna Pillai on 28 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 2672 of 2008()


1. SUKUMARA PILLAI, S/O.BHASKARA PILLAI,
                      ...  Petitioner

                        Vs



1. K.P.GOPALAKRISHNA PILLAI,
                       ...       Respondent

2. SUNIL KUMAR, S/O.GOVINDAN NAIR,

3. THE SENIOR DIVISIONAL MANAGER,

                For Petitioner  :SRI.SANTHAN V.NAIR

                For Respondent  :SRI.LAL GEORGE

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

 Dated :28/01/2009

 O R D E R
                          M.N. KRISHNAN, J
                         -----------------------
                    M.A.C.A.No. 2672 OF 2008
                    ---------------------------------
              Dated this the 28th day of January, 2009


                              JUDGMENT

This is an appeal preferred against the award of the Motor

Accident Claims Tribunal, Thiruvananthapuram in O.P.(MV)

No.769/2002. The claimant, a pillion rider in a motor cycle,

sustained injuries in a road accident and he has been awarded a

compensation of Rs. 23,650/- and the Insurance Company has been

exonerated from the liability. It is against the exoneration of the

Insurance Company from the liability, the appeal is preferred by the

claimant.

2. A perusal of the award as well as the policy would show

that it is a comprehensive policy. Unfortunately the conditions of

the comprehensive policy has not been produced. Admittedly no

additional premium is collected to cover the risk of a pillion rider.

So far as the liability of the Insurance Company is concerned, if the

policy issued is only an Act only policy and no additional premium is

collected and therefore in the light of the dictum laid down in

United India Insurance Co. Ltd. v. Tilak Singh [2006 (2) KLT

884], the Insurance Company is not bound to pay the amount.

But there are certain comprehensive policies which contains

M.A.C.A. 2672/2008
2

conditions of the contract whereby it undertakes to cover the risk

of a person travelling in a motor vehicle other than for hire or

reward. This clause came up for consideration before a Division

Bench of this court in the decision reported in New India

Assurance Company Ltd. v. Hydrose and others [2008 (3)

KHC 522] , held that by virtue of the terms of the contract, the

Insurance company may be liable to pay the amount. But all

depends upon the specific clause contained in the policy and if there

is a coverage by terms of the contract then the Insurance Company

may not be able to escape. But for the said purpose it requires

production of the conditions of the policy as well as the evidence.

Therefore the matter requires reconsideration at the hands of the

tribunal. Therefore the award under challenge is set aside so far as

it relates to the liability is concerned and matter is remitted back to

the tribunal for fresh consideration . All parties are permitted to

produce documentary as well as oral evidence in support of their

respective contentions.

Parties are directed to appear before the tribunal on 3.3.2009.

M.N. KRISHNAN,JUDGE
vkm

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