IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 MACA.No. 2307 of 2008() ----------------------- OPMV.358/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: 3RD RESPONDENT ---------------------------- M/S. UNITED INDIA INSURANCE CO. LTD., PARK HOUSE, ROUND NORTH, THRISSUR DISTRICT. BY ADV.MS.P.A.REZIYA RESPONDENTS: PETITIONER & RESPONDENTS 1 AND 2 ------------------------------------------------- 1. A.P. MOHANAN, S/O. PARAN, ATTUVEEPPIL HOUSE, MARATHAKKARA.P.O, PUZHAMPALLAM, THRISSUR DISTRICT. 2. K.N. PRASAD, 12/589, KORATTIKKADA HOUSE, P.O. ERAVIMANGALAM, THRISSUR DISTRICT. 3. JALJITH.A.M, 12/589,KORATTIKKADA HOUSE, P.O. ERAVIMANGALAM, THRISSUR DISTRICT. ADV. MR. JIJO PAUL FOR R1 TO 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA.2307/08 ORDER ON I.A. 2745 OF 2008 IN MACA 2307 OF 2008 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 7.4.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- M.A.C.A. No.2307 OF 2008 -------------------------------------------------- Dated this the 7th day of April, 2009 J U D G M E N T The appeal is filed by the third respondent in O.P. (MV)358 of 2003 on the file of Motor Accident Claims Tribunal, Thrissur challenging the award directing appellant to pay the compensation of Rs.39,400/- for the injuries sustained by first respondent, the petitioner in the O.P(MV). The case of the first respondent was that on 22.9.2002 he was the pillion rider of motor cycle KL-8/9548 insured with the appellant and the third respondent was riding the motor cycle. Third respondent is the son of the first respondent. When the motor cycle reached at Chakkalakkal corner it is alleged that due to the negligent riding of the motor cycle by the third respondent, he lost the control of the vehicle and the vehicle capsized and the leg of the first respondent was caught under the motor cycle and he sustained injuries. Second respondent is the insured. The Motor Accident Claims Tribunal found first respondent was a pillion rider and the motor cycle was insured with the appellant and due to the MACA.2307/08-E 2 accident first respondent sustained injuries and as it was caused due to the negligent riding of the motor cycle by third respondent, second respondent, the owner is liable and as it is insured with the appellant, appellant is liable to pay the compensation. The Motor Accident Claims Tribunal fixed the compensation payable at Rs.39,400/-. The Insurance Company has filed this appeal contending that being a package policy and as no premium for pillion rider was paid, the Insurance Company has no liability to indemnify the insured and the award as against the appellant is not sustainable. 2. Though second respondent the insured along with the first respondent claimant and third respondent the rider appeared through the same counsel, the learned counsel subsequently reported no instructions as according to the learned counsel in spite of notice sent to the respondents none of them turned up. Learned counsel appearing for appellant was heard. 3. Learned counsel appearing for appellant pointed out that in the O.P(MV) notice was not taken against third respondent, the rider and therefore the claim as against him was MACA.2307/08-E 3 dismissed. It was pointed out that the liability of the owner would only be on account of the negligence of the rider and when the claim as against the rider is dismissed, the claim as against the owner will not lie and if so the Insurance Company has no liability to indemnify. It was also argued that when no extra premium was paid for the package policy, appellant has no liability to indemnify the insured for the compensation payable to the pillion rider and therefore the award as against the appellant is not sustainable. 4. Learned Motor Accident Claims Tribunal passed an award as against the appellant for the sole reason that the vehicle was insured with the appellant. The question whether the Insurance company has liability to indemnify the second respondent for the injuries sustained by a pillion rider without payment of the extra premium even though the policy was a package policy, was not considered by the Motor Accident Claims Tribunal. 5. The pillion rider cannot be taken as a third party. Therefore treating first respondent, a pillion rider as third party appellant cannot be saddled with the liability. It cannot be said MACA.2307/08-E 4 that the appellant Insurance Company has a liability to indemnify the insured for the injuries sustained by pillion rider if no extra premium was paid. There is no case for the second respondent insured that apart from the premium payable to the rider and third party, premium was paid to cover the pillion rider. Case of the appellant is that no premium to cover the pillion rider was paid. Hence appellant is not liable to indemnify the second respondent for the compensation payable to first respondent the pillion rider. Therefore the award as against the appellant/third respondent is not sustainable. The appeal is allowed. The award passed by Motor Accident Claims Tribunal, Thrissur as against the appellant is set aside. But it is made clear that first respondent is entitled to realise the compensation from the second respondent. M. SASIDHARAN NAMBIAR, JUDGE okb