IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 MACA.No. 1747 of 2007() ---------------------------------- OPMV.2754/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: 2ND RESPONDENT ----------------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, MATTANCHERRY, NOW REPRESENTED BY ITS CHIEF REGIONAL MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS/PETITIONER AND IST RESPONDENT -------------------------------------------- 1. KAMARUDEEN, S/O.K.H.ABU, 2/163, KARIMBADATH HOUSE, KALVATHY, FORT KOCHI, COCHIN-1. 2. N.A.THADEVUS, S/O.ANTHAPPAN, XIV/12, NADUVILA VEETIL, WEST OF WATER AUTHORITY, WEST OF CHEMMEENS JUNCTION, KARUVELIPPADY, COCHIN-5. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 1747 of 2007 ORDER ON I.A.NO.2101 OF 2007 IN M.A.C.A.NO.1747 OF 2007 DISMISSED 28.11.2008 SD/- M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1747 OF 2007 --------------------------------- Dated this the 28th day of November, 2008 JUDGMENT In spite of publication, the respondents have not chosen to enter appearance. Appeal is disposed of as follows: This appeal is preferred against the award of the Motor Accident Claims Tribunal, Ernakulam in O.P.(MV) No. 2754/1999. The claimant sustained injuries in a road accident and the tribunal awarded a compensation of Rs. 20,000/-. The tribunal directed the Insurance Company to pay the amount and recover it from the first respondent namely owner cum driver. It is against that decision the appeal is preferred. 2. Heard the learned counsel for the appellant. It is contended by the learned senior counsel that the policy issued was only an Act only policy and it does not cover the risk of a passenger carried in a private vehicle. Secondly it is submitted that suppressing the factum that the vehicle was a taxi, permit had been obtained for the vehicle as a private vehicle. Thereby the policy obtained by suppressing material facts will invalidate the policy. I feel the contentions raised by the learned counsel has got M.A.C.A. No. 1747/2007 -2- some force as is seen from para 8 of the award. It is seen that the certificate of registration indicated that the vehicle was allotted as a tourist taxi in the year 1985. The accident had taken place in the year 1999. In between, there is nothing to show that there is a change of the vehicle from taxi to a private vehicle. So there is suppression of materials. 3. If it has been converted as a private vehicle, then the policy which is taken is only an Act only policy. When the policy is only an Act only policy, the persons travelling in that vehicle have the status of only gratuitous passengers who is not liable to be covered under the policy. So considering both these contentions, either the policy is obtained by suppressing material facts which will go into the root of the bonafidies and secondly if it is a private vehicle, then an Act only policy will not cover the risk of a passenger in a private vehicle. On either way the Insurance Company cannot be held liable. Therefore the award passed by the tribunal directing the Insurance Company to pay the amount and get it realised from the owner cum driver namely the 1st respondent in the claim application is liable to be set aside and I do so. The claimant is entitled to recover the amount from the owner cum M.A.C.A. No. 1747/2007 -3- driver. If any amount deposited by the Insurance Company it shall be reimbursed on proper application. If any amount deposited by insurer is withdrawn by the claimant, then the Insurance Company is permitted to recover that amount also from the owner of the vehicle. The M.A.C.A. is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm