The National Insurance Co.Ltd vs Ahammad Kabeer on 5 November, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1630 of 2007()


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

                        Vs



1. AHAMMAD KABEER, S/O.C.K.ABDUL KHADAR,
                       ...       Respondent

2. K.V.MOHANDAS, S/O.LATE VASU,

3. SUNDARAN, S/O.PONNANDI, NELLIKKAD HOUSE,

                For Petitioner  :SRI.GEORGE CHERIAN (THIRUVALLA)

                For Respondent  :SRI.RAJESH SIVARAMANKUTTY

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

 Dated :05/11/2008

 O R D E R
                            M.N.KRISHNAN, J
                        =====================
                          MACA No.1630 OF 2007
                        =====================

                 Dated this the 5th day of November 2008

                                JUDGMENT

This appeal is preferred against the award of the Motor Accidents

Claims Tribunal, Palakkad in O.P.(MV)No.792 of 2000. The short question

that arises for determination in the appeal is regarding the liability of the

insurance company. The Tribunal found that the boy injured in the

accident was a gratuitous passenger in a tractor and ultimately held that the

insurance company has to pay the amount and get it reimbursed from the

owner. It is that finding which is challenged by the insurance company.

2. Learned counsel for the appellant has cited before me the decision

of the Apex Court in National Insurance Co.Ltd. v. Bommithi

Subbhayamma(2005(2) KLT SN 58 at page 46). The Apex Court held that

for a gratuitous passenger in a goods vehicle the insurer is not liable to pay

compensation. It has to be held that when a person is found to be a

gratuitous passenger then the question to be decided is whether he is

covered under the policy issued by the insurance company. Section 147 of

the Motor Vehicles Act statutorily covers the risk of only certain named

MACA 1630/2007 -:2:-

persons for which no additional premium is required. Any other person

other than a 3rd party except the other persons mentioned therein would have

the status of only gratuitous passenger. So the question is what will be the

liability of the insurance company with respect to a gratuitous passenger.

Right from Swaran Singh’s case (2004(1) KLT 781(SC), the Apex Court

has held that when there is a breach of policy condition, that too, with

respect to a 3rd party the insurance company cannot get absolved from the

liability to a 3rd party but it can get it reimbursed from the owner. Or, in

other words, the person must be a 3rd party. It has been held by the Apex

Court that a gratuitous passenger carried in a vehicle is not a 3rd party and he

is not a person covered by the policy. Actually it is not a breach of policy

condition but it is the non-coverage of that person under the policy. When

there is no coverage the insurance company has to be totally exonerated

from the liability and therefore I reverse the finding of the Tribunal and

hold that the insurance company is not to be made liable to pay the

compensation. But the claimant is at liberty to proceed against respondents

1 and 2 in the claim petition for realising the amount jointly and severally. If

any amount is deposited by the insurance company for the purpose of

preferring this appeal, that amount be reimbursed to the insurance

MACA 1630/2007 -:3:-

company on appropriate application.

MACA is disposed of accordingly.

M.N.KRISHNAN, JUDGE

Cdp/-