IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 MACA.No. 1139 of 2008(B) -------------------------------- OPMV.76/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S):/3RD RESPONDENT --------------------------------------------- NATIONAL INSURANCE CO.LTD., REP. BY ITS MANAGER, 3RD PARTY WING, OMANA BUILDING, PADMA JUNCTION, KOCHI-35. BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY -------------------------------------------------------------------------------- 1. K.KISHORE, AGED ABOUT 24 YEARS, S/O.P.KUNHIKRISHNAN, R/AT SHAJU NIVAS, PALLIKKARE, PEROLE VILLAGE, HOSDURG TALUK, P.O.NILESHWAR - 671 314, REP. BY HIS POWER OF ATTORNEY HOLDER FATHER P.KUNHIKRISHNAN, AGED ABOUT 61 YEARS, S/O.PAKKEERAN -DO- -DO- 2. SATHEESH T.V., AGED ABOUT 31 YEARS, S/O.A.V.AMBU, R/AT ILLATH VALAPPIL HOUSE, PALLIKKARE, PEROLE VILLAGE OF HOSDURG TALUK, P.O.NILESHWAR - 671 314. 3. T.V.SATHYAPALAN, AGED ABOUT 33 YEARS, S/O.AMBU A.V., R/AT ILLATH VALAPPIL HOUSE, PALLIKKARE PEROLE VILLAGE OF HOSDURG TALUK, P.O.NILESHWAR, - 671 314. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2009, ALONG WITH MACA 2186 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 1139 & 2186 OF 2008 = = = = = = = = = = = = = = = Dated this the 30th day of January, 2009 J U D G M E N T These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Kasaragod in O.P.(MV) No.76/05. MACA 1139/08 is filed by the insurance company and the other appeal is filed by the 2nd respondent who is the owner of the vehicle. The claimant in the case was a pillion rider who sustained injuries in a road accident. The Tribunal on a consideration of the materials passed an award for Rs.84,868/- and directed the insurance company to pay the amount and recover it from the owner of the vehicle on satisfaction of the award. It is challenging that decision of recovery the insurance company has come up in appeal contending for the position that there cannot be any liability fixed on the insurance company in the light of the policy. Whereas the 2nd respondent namely the owner would contend that the policy covers the risk of a pillion rider as well and therefore the insurance company is bound to indemnify and there cannot be any right to recovery. M.A.C.A. Nos.1139 &2186/08 -:2:- 2. On hearing the counsel for both sides and after perusal of the policy I am convinced that the policy issued in this case is only an Act only policy. The Act only policy does not cover the risk of a pillion rider as no additional premium is collected. Therefore it come within the four corners of the dictum laid down in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh)2006 (2) KLT 884 (SC). The learned counsel for the insurance company would contend that the policy does not cover the risk of a pillion rider. The status of a person travelling in a two wheeler will be that of a gratuitous passenger as has been held in Tilak Singh's case and Asha Rani case, New India Assurance Co. Ltd. v. Asha Rani 2003 (1) KLT 165 and so there must be total exoneration of the liability. The Tribunal below found that applying the dictum in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) there must be an order to pay and receive. The question of pay and to get reimbursement arises in cases where a third party is involved and there is a M.A.C.A. Nos.1139 &2186/08 -:3:- breach of policy condition. In the light of the said decisions the status of a pillion rider cannot be equated to that of a third party but it is only of a gratuitous passenger. So the compulsory risk coverage cannot be extended to the pillion rider in the case. 3. Secondly the right to recovery arises when the policy covers the risk but by the breach of the policy conditions committed by the owner the exoneration is claimed. Here, in the light of the decision laid down and referred to above the policy does not cover the risk of a pillion rider at all and therefore there is no coverage for the pillion rider. When there is no coverage for the pillion rider there cannot be any liability on the insurance company and therefore the direction to pay and recover is not proper and it is invalid. So the award of the Tribunal directing the insurance company to pay the amount and recover it from the insured is not legally sustainable and therefore it is set aside. Therefore the award under challenge is modified thereby exonerating the insurance company totally from the M.A.C.A. Nos.1139 &2186/08 -:4:- liability and the claimant is entitled to proceed against respondents 1 and 2 in the claim petition for realisation of the amount jointly and severally. With this finding MACA 1139/08 is allowed and MACA 2186/08 is dismissed. Parties shall bear their respective costs. M.N. KRISHNAN, JUDGE. ul/-