IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2253 of 2008()
1. THE NEW INDIA ASSURANCE COMPANY LTD,
... Petitioner
Vs
1. YAMUNA W/O.JAYARAJAN,
... Respondent
2. CHERIAN THARAKAN, S/O.THARAKAN,
3. JAYARAJAN, S/O.RAMACHANDRA KURUP,
For Petitioner :SRI.P.R.RAMACHANDRA MENON
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :17/10/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A No. 2253 OF 2008
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Dated this the 17thday of October, 2008
JUDGMENT
This appeal is preferred against the award passed by the
Motor Accident Claims Tribunal, Thrissur, in OP(MV) 1786/01. Since
the Tribunal has not considered the question which is raised in the
additional written statement, the award requires interference.
Therefore, at the admission stage itself, I am inclined to dispose of
the matter without notice to the other side.
2. The claimant in the case was a passenger in a private
car. The accident had taken place on 28.12.00. It is specifically
contended in the additional written statement filed by the Insurance
Company that the policy issued is an Act only policy and no
additional premium is received to cover the passenger. It has been
held by the Apex court in the decision reported in New India
Assurance Co. Ltd. v. Asha Rani [2003 (1) KLT 165 (SC)] that if it
is a private car which is having only an Act only policy, the status of
the person travelling in the car will be that of a gratuitous passenger
not covered by the policy. Unfortunately, the Tribunal did not raise
any issue in order to render a finding on the said question. It is also
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to be stated that if the claimant is a gratuitous passenger, then there
is no liability for the Insurance Company and therefore the Insurance
Company cannot be ordered to pay the amount and get it
reimbursed.
Therefore, the award under challenge is set aside and the
matter is remitted back to the Tribunal for fresh consideration. The
Insurance Company is directed to take notice to the other parties
after it enters appearance. The Tribunal shall permit all the parties to
produce documentary as well as oral evidence in support of their
respective contentions and the Tribunal shall dispose of the matter in
accordance with law.
The Insurance Company is directed to appear before the
Tribunal on 1.12.08.
M.N.KRISHNAN, JUDGE
vps
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