IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 839 of 2006()
1. THE NEW INDIA ASSURANCE COMPANY LTD.,
... Petitioner
Vs
1. K.RADHIKA, AGED ABOUT 52 YEARS,
... Respondent
2. MANU SEKHAR C.R.,
3. INDU SEKHAR C.R.,
For Petitioner :SRI.P.R.RAMACHANDRA MENON
For Respondent :SRI.SAJU.S.A
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :21/10/2008
O R D E R
C .N. RAMACHANDRAN NAIR &
HARUN-UL-RASHID, JJ.
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M.A.C.A. No. 839 OF 2006
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Dated this the 21st day of October, 2008
C.R.
JUDGMENT
Ramachandran Nair,J.
Appeal is filed by the insurance company against the award of
MACT directing the appellant to pay compensation for the death of son
of the first respsondent, the remaining respondents being siblings of the
deceased. Claim Petition was filed by respondents under Section 163A
of the M.V. Act and the MACT granted compensation of Rs.
1,84,500/- and since the motorbike was covered by a comprehensive
policy (B policy), the appellant was directed to deposit compensation.
It is against this part of the award that the appellant has filed this
appeal. We have heard standing counsel appearing for the appellant
and counsel appearing for the respondents.
2. Counsel appearing for the appellant cited decision of the
Supreme Court in NEW INDIA ASSURANCE CO. LTD. V. JAYA,
(2002 ) 1 K.L.T. 596 (SC), and also Full Bench decision of this Court
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in MATHEW JOSEPH V. JANAKI, (2007) 1 K.L.T. 747 (FB) and
contended that insurance company has no liability to pay compensation
for the death of rider of a motor-cycle though the policy is a
comprehensive policy (B policy). Counsel appearing for the
respondents on the other hand referred to Division Bench decision of
this Court in NEW INDIA ASSURANCE CO.LTD. V. HYDROSE,
(2008) 3 K.L.T. 778 and ORIENTAL INSURANCE CO.LTD. V.
SMT. BABY AND ORS, (2008) 4 KHC 103 (DB) and contended that
appellant is liable to pay compensation to the legal representatives of
the victim under the Comprehensive Policy.
3. In the decision of the Supreme Court cited by the appellant, all
what is decided is that higher compensation over the limit can be
claimed only on payment of additional premium. In the Full Bench
decision cited by the appellant, this Court has in fact held that
gratuitous passengers in transport vehicles including motorcycles, can
have coverage only when a comprehensive policy or extended policy as
might be possible to be issued has been availed by the owner of the
vehicle. Since the appellant has contested the liability on the ground
that it is not covered by conditions of policy, we have referred to the
conditions of B policy issued to the registered owner of the vehicle in
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this case. Section II of the Conditions of policy providing for liability
to third parties is as follows:
Section II- Liability to Third Parties.
(1)…….
(3) In terms of and subject to the limitations of the
indemnity which is granted by this Section to the
Insured the company will indemnify any Driver who
is driving the Motor Cycle on the insured’s order or
with his permission provided that such Driver shall as
though he were the insured observe fulfil and be
subject to the terms exceptions and conditions of this
Policy in so far as they can apply.
(4) In the event of death of any person entitled to
indemnity under this Policy the company will in
respect of the liability incurred by such person
indemnify his personal representatives in the terms of
and subject to the limitations of this Policy provided
that such personal representatives shall as though
they were the insured observe fulfil and be subject to
theterms, exceptions and conditions of this Policy in
so far as they can apply.
……..
It is clear from the above that coverage under the Policy is extended to
a driver who is allowed to drive the vehicle with the permission of the
insured and that such driver observes all the formalities and conditions
required to be complied with by the insured. In fact clause (4) entitles
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legal representatives to claim compensation in the event of death of a
person who is covered by the Policy. Even though counsel for the
appellant submitted that Section II of the Policy deals with liability to
third parties and rider of motor bike in this case is not a third party, we
are unable to accept this contention because the above terms of the
policy specifically cover liability for a driver treating him as a third
party. In other words, a driver other than the insured is specifically
covered by the policy subject to the condition that he at the time of the
accident was driving the vehicle on being engaged by the insured or
with his consent. The insurance company can disown liability for the
death of driver driving a private vehicle only if it is proved that he was
driving the vehicle without being engaged or without authority of the
insured. Similarly other conditions such as driver should have a
driving licence and at the time of driving the vehicle, he should not be
under the influence of alcohol, will be applicable for claiming the
benefit. Another claim raised by the insurance company is that income
of the deceased was Rs. 9000/- which is above the limit which entitles
for maintaining a claim under Section 163A of the MV Act. However,
counsel for the respondents submitted that application was amended
reducing the monthly income to Rs. 3300/- which is within the limit for
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making claim under Section 163A of the Act. We do not think, after
permitting the respondents to reduce the monthly income of the
deceased, appellant can raise this contention in the appeal. Further
appellant did not adduce any evidence that the deceased had income
above the limit that entitles him for maintaining a petition under
Section 163A of the Act. Therefore this ground is also not available to
the appellant to attack the award.
We therefore dismiss the appeal.
(C.N.RAMACHANDRAN NAIR)
Judge.
(HARUN-UL-RASHID)
Judge.
kk
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