IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 MACA.No. 839 of 2006() ---------------------- OPMV.78/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/2ND RESPONDENT -------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY THE DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENT(S): CLAIMANTS 2 & 3 & 1ST RESPONDENT ----------------------------------------------- 1. K.RADHIKA, AGED ABOUT 52 YEARS, SARASWATHI BHAVAN, NORTH FORT, NEYYATTINKARA, THIRUVANANTHAPURAM. 2. MANU SEKHAR C.R., AGED ABOUT 23 YEARS, DO. 3. INDU SEKHAR C.R., THAIVEEDU, HOUSE NO.3/29, VELLANADU. ADV. SRI.SAJU.S.A FOR R1 & R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- M.A.C.A. No. 839 OF 2006 -------------------------------------------- Dated this the 21st day of October, 2008 C.R. JUDGMENT Ramachandran Nair,J. Appeal is filed by the insurance company against the award of MACT directing the appellant to pay compensation for the death of son of the first respsondent, the remaining respondents being siblings of the deceased. Claim Petition was filed by respondents under Section 163A of the M.V. Act and the MACT granted compensation of Rs. 1,84,500/- and since the motorbike was covered by a comprehensive policy (B policy), the appellant was directed to deposit compensation. It is against this part of the award that the appellant has filed this appeal. We have heard standing counsel appearing for the appellant and counsel appearing for the respondents. 2. Counsel appearing for the appellant cited decision of the Supreme Court in NEW INDIA ASSURANCE CO. LTD. V. JAYA, (2002 ) 1 K.L.T. 596 (SC), and also Full Bench decision of this Court 2 in MATHEW JOSEPH V. JANAKI, (2007) 1 K.L.T. 747 (FB) and contended that insurance company has no liability to pay compensation for the death of rider of a motor-cycle though the policy is a comprehensive policy (B policy). Counsel appearing for the respondents on the other hand referred to Division Bench decision of this Court in NEW INDIA ASSURANCE CO.LTD. V. HYDROSE, (2008) 3 K.L.T. 778 and ORIENTAL INSURANCE CO.LTD. V. SMT. BABY AND ORS, (2008) 4 KHC 103 (DB) and contended that appellant is liable to pay compensation to the legal representatives of the victim under the Comprehensive Policy. 3. In the decision of the Supreme Court cited by the appellant, all what is decided is that higher compensation over the limit can be claimed only on payment of additional premium. In the Full Bench decision cited by the appellant, this Court has in fact held that gratuitous passengers in transport vehicles including motorcycles, can have coverage only when a comprehensive policy or extended policy as might be possible to be issued has been availed by the owner of the vehicle. Since the appellant has contested the liability on the ground that it is not covered by conditions of policy, we have referred to the conditions of B policy issued to the registered owner of the vehicle in 3 this case. Section II of the Conditions of policy providing for liability to third parties is as follows: Section II- Liability to Third Parties. (1)....... (3) In terms of and subject to the limitations of the indemnity which is granted by this Section to the Insured the company will indemnify any Driver who is driving the Motor Cycle on the insured's order or with his permission provided that such Driver shall as though he were the insured observe fulfil and be subject to the terms exceptions and conditions of this Policy in so far as they can apply. (4) In the event of death of any person entitled to indemnity under this Policy the company will in respect of the liability incurred by such person indemnify his personal representatives in the terms of and subject to the limitations of this Policy provided that such personal representatives shall as though they were the insured observe fulfil and be subject to theterms, exceptions and conditions of this Policy in so far as they can apply. ........ It is clear from the above that coverage under the Policy is extended to a driver who is allowed to drive the vehicle with the permission of the insured and that such driver observes all the formalities and conditions required to be complied with by the insured. In fact clause (4) entitles 4 legal representatives to claim compensation in the event of death of a person who is covered by the Policy. Even though counsel for the appellant submitted that Section II of the Policy deals with liability to third parties and rider of motor bike in this case is not a third party, we are unable to accept this contention because the above terms of the policy specifically cover liability for a driver treating him as a third party. In other words, a driver other than the insured is specifically covered by the policy subject to the condition that he at the time of the accident was driving the vehicle on being engaged by the insured or with his consent. The insurance company can disown liability for the death of driver driving a private vehicle only if it is proved that he was driving the vehicle without being engaged or without authority of the insured. Similarly other conditions such as driver should have a driving licence and at the time of driving the vehicle, he should not be under the influence of alcohol, will be applicable for claiming the benefit. Another claim raised by the insurance company is that income of the deceased was Rs. 9000/- which is above the limit which entitles for maintaining a claim under Section 163A of the MV Act. However, counsel for the respondents submitted that application was amended reducing the monthly income to Rs. 3300/- which is within the limit for 5 making claim under Section 163A of the Act. We do not think, after permitting the respondents to reduce the monthly income of the deceased, appellant can raise this contention in the appeal. Further appellant did not adduce any evidence that the deceased had income above the limit that entitles him for maintaining a petition under Section 163A of the Act. Therefore this ground is also not available to the appellant to attack the award. We therefore dismiss the appeal. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk 6