IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 53 of 2009()
1. XAVIER ALIAS XAVIER ANSON,S/O.VARGHESE,
... Petitioner
Vs
1. UNITED INDIA INSURANCE CO.LTD D.O.3,JOS
... Respondent
For Petitioner :SRI.V.K.GOPALAKRISHNA PILLAI
For Respondent :SRI.JOHN JOSEPH VETTIKAD
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/12/2009
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. No. 53 OF 2009
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Dated this the 11th day of December, 2009
JUDGMENT
This is an appeal preferred against the award of the
claims Tribunal, Ernakulam in O.P(M.V)No.852/2002. The
claimant, a pillion rider, while traveling sustained injuries in
a road accident and the tribunal has awarded a
compensation of Rs.30,999/- and exonerated the Insurance
Company from the liability and directed respondents 1 and
2 to pay the amount. It is against the exoneration of
liability of the Insurance Company, the claimant has come
up in appeal.
2. The learned tribunal had exonerated the Insurance
Company on the ground that no additional premium has
been collected to cover the risk of the pillion rider.
Admittedly, the vehicle is covered by a package policy,
which is described as ‘B policy’. Now the terms and
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2
conditions of a package policy is that as per Section II(1) (i)
of Motor Vehicle Act, subject to the limits of liability as laid
down in the schedule thereto, the company will indemnify
the insured in the event of an accident caused by or arising
out of the use of the insured vehicle against, of sums which
the insured shall become legally liable to pay in respect of
death or bodily injury to any person including occupants
carried in a vehicle (provided such occupants are not carried
for hire or reward), but except so far as it is necessary to
meet the requirements of the Motor Vehicles Act, the
company shall not be liable where such death or injury
arises out of and in the course of employment of such
person by the insured. This clause has come up for
consideration before the two Division Benches of this Court
reported in (2008 (3) KLT 778 and 2009 (3) KLT 813,
that is new India Assurance Company Vs. Hydrose
and another and Mathew Vs. Shaji Mathew). In the
Hydrose’s case the Court was considering the clause where
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3
“but except, so far as it is necessary to meet the
requirements of the Motor Vehicles Act” was not there. In
that case the Court held that by virtue of the terms and
conditions of the policy, the insurer has undertaken to wipe
off the liability of the insured and therefore held that no
additional premium is necessary for the coverage of the
pillion rider. In the other case, an additional clause was
also considered and the Division Bench held that the benefit
conferred in the Hydrose case has to be extended to such
type of policies as well.
3. Therefore by virtue of the decisions it has to be held
that the Insurance Company is liable. Now over and above
these, the Insurance Regulatory and Development Authority
had issued a clarificatory circular, on these conditions in the
motor package policy. As per the said circular “the above
circulars make it clear that the insurer’s liability in respect of
occupants carried in a private car and pillion rider carried on
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4
two wheeler is covered under the Standard Motor Package
Policy”. Therefore by virtue of the clarificatory circular also
the Insurance Company cannot get exonerated from the
liability. In view of the discussions, the award of the
tribunal exonerating the Insurance Company from the
liability is incorrect and is liable to be set aside and I do so.
The Insurance Company is made liable.
4. Therefore, the M.A.C.A is allowed and the finding of
exoneration of liability of the Insurance Company is set
aside and the Insurance Company is made liable to pay the
amount awarded. The Insurance Company shall deposit the
said amount within a period of 60 days from the date of
receipt of the copy of the judgment. Appeal disposed of
accordingly.
M.N.KRISHNAN,
JUDGE
/ss/