IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 MACA.No. 1659 of 2006(A) ------------------------ OPMV.118/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/3RD RESPONDENT: ----------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, KANJIRAPPALLY NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI 18. BY ADV. MR. MATHEWS JACOB, SENIOR ADVOCATE MR. P.JACOB MATHEW RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2: --------------- 1. THOMAS MATHEW, PUTHIYATHU HOUSE, CHEMMALAMATTOM P.O. PINNAKKANADU, KOTTAYAM DISTRICT. 2. JOHNSON JOSEPH, S/O.JOSEPH, KOZHIMALA HOUSE, THUMPAMADU BHAGOM, THAMBALACKADU KARA, KANJIRAPPALLY VILLAGE. 3. P.C.THANKACHAN, S/O.CHACKO THOMAS, MAVUVADATHIL HOUSE, AMARAVATHY P.O. KUMALY. ADV. MR. P.C.JOSEPH PAZHEPARAMBIL FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA.1659/06 ORDER ON I.A. 1899 OF 2006 IN M.A.C.A. 1659 OF 2006 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 16.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- M.A.C.A.No.1659 OF 2006 -------------------------------------------------- Dated this the 16th day of March, 2009 J U D G M E N T Third respondent Insurance company is challenging the award passed by Motor Accident Claims Tribunal, Pala in O.P (MV) 118 of 2002 dated 24.4.2006. First respondent is the claimant. Respondents 2 and 3 are the rider and owner of the motor cycle. First respondent, the petitioner before Motor Accident Claims Tribunal, was a pillion rider of motor cycle KL- 6/A-2268. Second respondent was then the rider. First respondent contended that due to the rash and negligent driving of the motor cycle by second respondent it overturned and first respondent sustained injuries and was treated at Marian Medical Centre, Pala and from there taken to Medical College Hospital, Kottayam and thereafter to Matha Hospital, Thellakam. First respondent claimed compensation against all the respondents. Respondents 2 and 3 remained absent and were set exparte. Appellant resisted the claim admitting the policy but contending that it is only an Act policy and so the Insurance company is not liable to compensate the injuries sustained by a pillion rider. MACA.1659/06-D 2 Motor Accident Claims Tribunal on the evidence of Exts.A1 to A11 found that the accident was caused due to the negligent driving of motor cycle by second respondent and first respondent is entitled to a total compensation of Rs.62,650/-. Appellant was directed to pay the compensation. Appeal is filed challenging the liability cast on the Insurance company. 2. Learned senior counsel appearing for appellant and learned counsel appearing for first respondent were heard. Respondents 2 and 3 did not appear before this court also. 3. The copy of the written statement made available by third respondent shows that in paragraph 4 it was specifically contended that the motor cycle is insured with the appellant and the policy issued was only an Act policy and therefore Insurance company is not liable to compensate the injuries sustained by first respondent, the pillion rider. The award of the Tribunal shows that this aspect was not considered by the Tribunal at all. The only points considered by the Tribunal are, (1) Who is responsible for the accident?, and (2) Whether first respondent is entitled to get compensation and if so, what is the quantum? 4. When the appellant has specifically contended that MACA.1659/06-D 3 being an Act policy taken by third respondent the Insurance company is not liable to pay compensation, due to a pillion rider the Tribunal should have considered the question of liability. The award does not show that a copy of the policy was produced or marked. Learned counsel submitted that a copy of the policy issued to the third respondent was produced before the Tribunal, but it was not considered. A copy of the policy issued to third respondent was made available which shows that it is only an Act policy. But as this question was not considered by the Tribunal and according to the learned counsel appearing for first respondent the policy was not made available to the Motor Accident Claims Tribunal, the award passed by the Motor Accident Claims Tribunal is to be set aside and O.P(MV) is to be remanded for consideration on the question of liability of the Insurance company. Appeal is allowed in part. The award passed by Motor Accident Claims Tribunal, Pala in O.P(MV)118 of 2002 to the extent of liability cast on the appellant alone is set aside. O.P (MV) 118 of 2002 is remanded to Motor Accident Claims Tribunal, Pala to consider the question whether the policy issued MACA.1659/06-D 4 to the third respondent, the insured, is an Act policy and if so, whether appellant is liable to pay the compensation to the first respondent, the pillion rider ? M. SASIDHARAN NAMBIAR, JUDGE okb