IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 634 of 2009()
1. THE NEW INDIA ASSURANCE COMPANY LTD.,
... Petitioner
Vs
1. RAMLA, W/O.LATE KUNHANI @ KUNHIMOHAMMED,
... Respondent
2. SELAMANUL FARIS (MINOR),
3. FARSHAD (MINOR),
4. MUHAMMEDKUTTY, S/O.MOIDEENKUTTY,
5. PATHUMMA, W/O.MOIDEENKUTTY,
6. P.ASSAINAR, S/O.MOHAMMED HAJI,
For Petitioner :SMT.RAJI T.BHASKAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :25/03/2009
O R D E R
R.BASANT & C.T.RAVIKUMAR, JJ.
------------------------------------
M.A.C.A No.634 of 2009
-------------------------------------
Dated this the 25th day of March, 2009
JUDGMENT
BASANT, J.
The appellant before us was the respondent/insurer before
the Tribunal. The claimant staked a claim for compensation for
personal injuries suffered by him in an accident which occurred
on 30.03.2003. He was a passenger in a private car owned by
the 1st respondent, driven by the 2nd respondent and insured with
the appellant/3rd respondent. Admittedly there is a valid policy
of insurance issued in respect of the vehicle. Admittedly it is a
comprehensive package policy. Admittedly the stipulations of
the policy are identical to the policy dealt with by a Division
Bench of this Court earlier in New India Assurance Co.Ltd. v.
Hydrose [2008(3) KLT 778]. Clause II(1) (i) of the policy in the
instant case is exactly identical to the clause referred to in New
India Assurance Co.Ltd. v. Hydrose (supra). The claimant
was thus a gratuitous passenger in a vehicle covered by the
package policy. The short question raised is whether the
gratuitous passenger in such a vehicle is covered by the terms of
the package policy.
M.A.C.A No.634 of 2009 2
2. It is first of all crucial to note that a contention that
the policy of insurance does not cover liability in respect of the
claimant was not ever raised before the Tribunal. The burden is
on the insurer to contend and establish that the terms of the
policy of insurance which admittedly is not an “Act only” Policy
does not cover the liability in respect of the claimant. Neither
pleadings or proof is offered in support of such a contention.
3. According to us, the decision in New India
Assurance Co.Ltd. v. Hydrose (supra) squarely covers the
issue and it is not necessary, at any rate, to admit this appeal to
consider the same contention all over again. More over, as
stated earlier, such a contention has not been raised at all before
the Tribunal.
4. This appeal is, in these circumstances, dismissed in
limine.
(R.BASANT, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
rtr/-