IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 MACA.No. 1366 of 2008(G) ------------------------------------- O.P(MV).NO.696/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA. .................... APPELLANT/3RD RESPONDENT: ----------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G. ROAD, KOCHI -11. BY ADV. SRI.P.R.RAMACHANDRA MENON. RESPONDENTS/ PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY: ---------------------------------------------------------------------------------------------------- 1. JOSE P.J. KANNAKUZHIYIL, KANAKKARY, NOW RESIDING AT KANNAKUZHIYIL, KIDANGOOR P.O. 2. SIBY YOHANNAN, EMBRANTHIL PADINJAREMURIYIL, KANGAZHA P.O, PATHANADU, 3. BOBAL ALEX, MANIMALATHARA (H), CHATHURTHIAKARY P.O., PULINCUNNU. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & V.K.MOHANAN, JJ. -------------------------------------- M.A.C.A.No.1366 OF 2008 ------------------------------------- Dated 11th July, 2008 JUDGMENT Koshy,J . Appellant insurance company filed this appeal questioning its liability under the policy on the contention that claimant sustained injuries in a motor accident due to the negligence of the driver of the vehicle insured by it, but, he was a pillion rider and he was not covered under the policy. Policy was not an act policy, but, it was a package policy. Tribunal mainly relied on IMT endorsement attached to the policy. The Tribunal found that insurance company relied on IMT conditions, but, that was not produced. Therefore, an adverse remark can be taken against the appellant. Tribunal also relied of the decision of the Hon'ble Supreme Court in Amrit Lal Sood and another v. Kaushalya Devi Thapar and others (1998 ACJ 531). We are of the view that even if the policy taken is comprehensive policy or a package policy, insurance company will be liable to pay statutory liability and risk contracted to cover. In other words, insurance company cannot evade statutory liability, if there is a valid policy. Non-statutory risks need not be covered unless there is specific contract. It is held by the Supreme Court in United India Insurance Co. Ltd., Shimla v. Tilak Singh and MACA.1366/2008 2 others (AIR 2006 SC 1576) that if there is only an act policy, pillion riders or gratuitous passengers in a private vehicle are not covered. Here, it was a comprehensive policy. Therefore, we have to look into the terms and conditions of the policy just like any other contract. A constitution bench of the Supreme Court in New India Assurance Co. Ltd. v. C.M.Jaya and others (AIR 2002 SC 651) held that conditions of the policy will bind the parties. Learned counsel for the insurance company furnished us copy of the conditions of the policy issued by the insurance company. Section II (1) of the policy conditions reads as follows: “SECTION II – LIABILITY TO THIRD PARTIES 1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the Motor Cycle against all sums which the insured shall become legally liable to pay in respect of i) death or bodily injury to any person including person conveyed in or on the Motor Cycle provided such person is not carried for hire or reward. ii) damage to property other than property belonging to the insured or held in trust by or in the custody or control of the Insured. PROVIDED ALWAYS that the Company shall not be liable in respect of death, injury or MACA.1366/2008 3 damage caused or arising beyond the limits of any carriageway or thoroughfare in connection with the bringing of the load to the Motor Cycle for loading thereon or the taking away of the load from the Motor Cycle after unloading therefrom.” Section II(1) clearly include the risk of a person conveyed in or on the Motor Cycle provided such person is not carried for hire or reward. Therefore, pillion rider is covered on the basis of the terms of the policy. It is argued that that is subject to the limit as laid down in the schedule. No limit is mentioned in the schedule with regard to the risk of liability of pillion rider. Therefore, in view of the conditions of the policy, we are of the view that the insurance company cannot evade its liability. In the above circumstances, we dismiss this appeal. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks