IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 MFA.No. 246 of 2002(E) ------------------------ OPMV.1938/1991 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT: 3RD RESPONDENT ------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, KOTTAYAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATUHEWS JACOB (SR.) RESPONDENTS: PETITIONER & RESPONDENTS 1 & 2 -------------------------------------------------------------- 1. BABU VEDAMPARAMBIL HOUSE, PERUMPANACHY P.O., CHANGANACHERRY. 2. K.JAYAKUMAR, MATTATHU VEEDU,PUNNATHALA, KOLLAM. 3. MATHEW ANTONY @ THANKACHAN, THATTAMTHARA HOUSE, KOTTABHAGOM, PULINKUNU VILLAGE,ALAPPUZHA. BY ADV. SRI.P.KURUVILLA JACOB FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NO. 246 OF 2002 = = = = = = = = = = = = = = = Dated this the 17th day of September, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in OP(MV)1938/91. In spite of service of notice in the delay condonation application, R2 in the appeal has not chosen to enter appearance. R1 and R3 had signed notice. R1 is the claimant and he is represented by counsel. The question that arises for determination in this appeal is regarding the liability of the insurance company to pay the amount. Admittedly, the claimant was travelling in a goods vehicle. The accident had taken place on 25.7.91. Prior to the amendment of S.147 of the M.V.Act by Act 54 of 1994, the owner of the goods or the representative of the owner of the goods travelling in a goods vehicle was not covered by policy unless wider premium was paid for coverage of such persons. So far as this case is concerned it was only an Act only policy. In the decision MFA 246 of 2002 -2- reported in Asha Rani's case, New India Assurance Co. Ltd. v. Asha Rani 2003 (1) KLT 165 the Apex Court had made it very clear that S.95 of the M.V.Act of 1939 and S.147 of the M.V.Act of 1988 prior to this amendment and Act 54 of 1994 are in pari meteria and they did not cover the risk of an owner of the goods or the representative of the owner of the goods travelling in a vehicle. Admittedly, in this case the accident had taken place in 1991, i.e., prior to the amended Act of 54 of 1994. So whatever may be the capacity of the claimant who travelled in the vehicle, he is not covered by the compulsory insurance contemplated under the provisions of the Act. The policy is only an Act only policy and therefore it does not have wider coverage. So the finding of the Tribunal that the insurance company is bound to pay compensation cannot be accepted for the reason the policy does not cover the risk of the claimant. Therefore the appeal is allowed and the award of the Tribunal fixing the liability on the insurance company is set aside and it is totally exonerated from the liability. The claimant is at liberty to proceed against MFA 246 of 2002 -3- respondents 1 and 2 in the claim petition who are jointly and severally liable for the claim for realisation of the award amount. 2. If any amount is deposited by the insurance company it shall be returned to them on proper application. In case the amount is paid to the claimant then the insurance company is given liberty to realise that amount from the owner of the vehicle. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- MFA 246 of 2002 -4- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No. 246 OF 2002 = = = = = = = = = = = J U D G M E N T 17th September, 2008.