IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 MACA.No. 1867 of 2009(C) ----------------------- AGAINST THE ORDER DATED 08/05/2009 IN IA-660-2009 IN OPMV.1831/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S)/4TH RESPONDENT: --------------------------------------- THE ORIENTAL INSURANCE CO. LTD., KOLLAM, REPRESENTD BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S)/ CLAIMANT: ---------------------------------- 1. KANAKA KUMARAN S/O DAMODARAN, THOLIYARATHALA HOUSE, PANAYARAKUNNU, PALLICHAL VILLAGE, NEYYATTINKARA TALUK. 2. ABDUL VAHEED, SUHALL MANZIL, ERAVIPURAM P.O. KOLLAM. 3. ANIL KUMAR S/O VELAPPAN NAIR, ANTHIYOOR AYILIAM, MOTTUKKAL DESOM, KOTTUKAL VILLAGE. 4. YESUDAS @ SHAJI S/O DEVA SAHAYAM, POZHUTHIL HOUSE NO.I408, VENGANNOOR DESOM, VIZHINJAM VILLAGE. 5. SAKHEER HUSSAIN, RAFIA MANZIL, NEDUMOM, KOVALAM, THIRUVANANTHAPURAM. 6. THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., II ND FLOOR, THIRUVANANTHAPURAM. ADV. SRI.J.HARIKUMAR FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1867 OF 2009 = = = = = = = = = = = = = = = Dated this the 30th day of August, 2010. J U D G M E N T This appeal is preferred against the interim award passed in O.P.(MV)1831/06. The claimant moved an application for compensation u/s 140 of the M.V.Act on account of the permanent disability suffered. He was a passenger in a trekker. The insurance company of the trekker raised a contention that being an an Act only policy it is not liable to pay compensation but the learned Tribunal had stated that there are several decisions which are to the effect that even as opposed to an an Act only policy, passengers of a private car are entitled to support a claim for compensation. I am afraid that the said approach is incorrect. In Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) the Hon'ble Supreme Court has made it clear these defences are available to the insurance company even under S.163A cases. Unless there is a liability on the insurance company it M.A.C.A. 1867 OF 2009 -:2:- cannot be fastened on them arbitrarily. In such cases it will be for the owner to pay the amount. Therefore I set aside the award and direct the Tribunal to dispose of the matter within a period of two months from today after hearing all concerned. I make it very clear let the entire O.P. be disposed of and not the preliminary question. Send a copy of the order to the Tribunal for compliance. M.N. KRISHNAN, JUDGE. ul/-