IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 MACA.No. 1895 of 2005() --------------------------- OPMV.871/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- BABU CHERIAN, AGED 46 YEARS, S/O.LATE CHERIAN, IPC, EBANEZAR HALL, THOTTABHAGAM, PIRAVOM. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.NITHYA.K. RESPONDENT(S): RESPONDENTS -------------------------- 1. K.P.VARGHESE, S/O.PATHROSE, KURIYADAM HOUSE, KOOVAPPADY P.O., ERNAKULAM. 2. GRACY BABU, W/O.BABU CHERIAN, IPC, EBANEZAR HALL, THOTTABHAGAM, PIRAVOM. 3. THE NATIONAL INSURANCE COMPANY LTD., 2ND FLOOR, GENERAL ASSURANCE BUILDING, D.N. ROAD, MUMBAI. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. ----------------------------------------- M.A.C.A No.1895 of 2005 ----------------------------------------- Dated this the 6th day of October , 2008 JUDGMENT Ramachandran Nair .J, This appeal is filed against the award passed by the Motor Accidents Claims Tribunal, Muvattupuzha, dismissing the appellant's claim petition for damages to the vehicle and injuries sustained to him in a Motor accident. The Maruthi car belonged to a third party being driven by the appellant's wife in the middle of the night with appellant as the other passenger went out of the road and hit against a concrete wall leading to damages to the car and injury to the appellant. The claim petition was preferred before the M.A.C.T, contending that the accident was caused on account of the rash and negligent driving by the appellant's wife and consequently the owner and insurer are liable to pay compensation. However the M.A.C.T. noticed that the accident happened not on account of any negligence of the driver but it happened while swerving the vehicle to save a dog which standing in the road . We have heard counsel for the appellant and standing counsel appearing for the Insurance Company. We find some force in the contentions of the appellant's counsel that the accident was caused on account of the negligence of the driver though the driver was none other than the wife of the appellant. Admittedly, the vehicle was went out of the road and hit fiercely on the road side wall causing injury to the vehicle and to the passengers inside. Even -2- though the car was swerved to save a animal which is a spontaneous and reflex action it will lead to ouster from the road and hit a roadside wall at high speed unless the driver could not control the vehicle. Going by the damages caused to the vehicle as recorded in the report of the A.M.I, it is obvious that the vehicle at the time of the accident was driven at a high speed and hence he could not control the vehicle or otherwise the vehicle would not go out of the road. In any case the impact of the accident itself proves high speed while driving in the middle of the night and therefore there is intrinsic negligence of the driver is self-evident, even though we are inclined to interfere with the finding of the M.A.C.T holding that the driver was not negligent . The counsel for the Insurance Company cited a decision of the Supreme Court in United India Insurance Co.Ltd Vs. Tilak Singh 2006 (2) K.L.T. 884 wherein the Supreme Court held that a passenger in a private vehicle is not covered by an 'act only policy' which covers only third parties since the policy issued by the insurer herein is only 'Act Only policy'. The appellant being the passenger of the vehicle is not entitled to compensation under the Policy. In the above circumstances the award of the M.A.C.T. is confirmed and consequently this appeal is dismissed. (C.N.RAMACHANDRAN NAIR,JUDGE) (HARUN-UL-RASHID, JUDGE) es. C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------- M.A.C.A. No. 1895 of 2005 ---------------------------- JUDGMENT 6th October , 2008