IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 MACA.No. 2098 of 2008() ---------------------------------- OPMV.2869/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): /3RD RESPONDENT:- --------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS MANAGER, REGIONAL OFFICE, 3RD PARTY WING, OMANA BUILDING, PADMA JUNCTION, KOCHI -35. BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): PETITIONER AND RESPONDENTS 1 & 2 RESPECTIVELY ------------------------ 1. JAYAN , AGED ABOUT 32 YEARS, S/O RAGHAVAN, OTTOLLIL HOUSE, OTTOLI LAKSHAM VEEDU COLONY, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE. 2. SURESH KUMAR M.R., S/O REGHUNANDAN, 442/8, SUNIL VIHAR, MARUNNAKUZHIYIL, NADAKKAVU, UDAYAMPEROOR P.O.. 3. AJI, S/O KARTHIKEYAN, PALLACHATHU HOUSE, NEAR OTTOLILAKSHAM VEEDU COLONY, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON22/01/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA No.2098 OF 2008 ===================== Dated this the 22nd day of January 2009 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)No.2869 of 2000. The claimant a pillion rider sustained injuries in a road accident. He has been awarded a compensation of Rs.15,000/-. It is against that decision, the insurance company has come up in appeal. 2. The Tribunal has found that the claimant, a pillion rider was not covered under the terms of the policy. In paragraph 9 of the award, it is specifically stated that Ext.B1 policy does not cover the risk of a pillion rider. When the policy does not cover the risk of a pillion rider it means that the insurance company has not contracted to indemnify the insured with respect to a pillion rider travelling in a two wheeler. When it is so, it cannot be directed to pay the amount and recover it from the owner. Such a right of recovery normally is given in cases where the policy covers the risk of the person, but there is breach of policy conditions which entitles the insurance company to raise a defence under Section 149 of the Motor Vehicles Act. MACA 2098/2008 -:2:- In such cases, when breach of policy conditions is proved, the liability to a third party is directed to be paid by the insurance company and get it reimbursed on account of the breach of policy conditions. Such a contingency does not arise in the case of a pillion rider who is not covered by an Act only policy. Therefore the direction of the Tribunal to pay and recover is not valid which requires interference. Therefore the award passed by the Tribunal is modified and the insurance company is totally exonerated from the liability and the claimant is at liberty to proceed against respondents 1 and 2 in the claim application for recovery of the amount due under the award. MACA is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-