IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 MACA.No. 676 of 2005() --------------------------------- OPMV.3376/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONER: ------------------------------------------ CLEMENT, S/O. INASU, KARERAKATTIL HOUSE, MARIYAPURAM P.O., ANCHERY, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): ------------------------- 1. PAUL ANTONY, S/O. ANTONY, ARAKKAL HOUSE, OLARIKKARA, THRISSUR. 2. VINOD P. JOHN, S/O. YOHANNAN, PULLUKKARAN HOUSE, UNITY ROAD, KURIACHIRA, THRISSUR DISTRICT. 3. NATIONAL INSURANCE CO.LTD., B.O.,P.B.NO.89, M.G. ROAD, THRISSUR. R3 BY ADV. SRI.E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2011, ALONG WITH MACA. NO.2368 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss R.BASANT & N.K.BALAKRISHNAN, JJ ===================== MACA NOS.676 OF 2005 & 2368 OF 2008 ===================== Dated this the 7th day of July, 2011 Judgment Basant, J. These appeals arise from a common order. The claim by the claimant was for compensation for personal injuries suffered by him. He was travelling as a pillion rider and according to him, he suffered injuries on account of the rash and negligent driving of the rider of the motor cycle. He staked his claim against the driver, owner and the insurance company. 2. The Tribunal awarded him a total amount of Rs.79,000/- as compensation along with interest and costs. The insurer was mulcted with the liability to discharge the award. 3. The insurer has come to this Court with MACA No.2368 of 2008, whereas the claimant has come to this Court with MACA No.676 of 2005. 4. Learned counsel for the insurance company submits that MACAs676/2005 & 2368/2008 -:2:- the policy issued in respect of the vehicle is an “Act only” policy. The policy has been produced and marked as Ext.P1. It is now a settled principle that the gratuitous passengers carried in a private vehicle/motor cycle is not covered under the 'Act only' policy issued by the insurer. The short contention of the learned counsel for the insurance company is that the Tribunal erred in ignoring the stipulations in the statute and the stipulations in the contract of insurance and in directing the appellant/insurer to discharge the liability on the strength of the policy issued by the insurer. Learned counsel for the claimant submits that law is well settled that compulsory policy of the insurance, in the absence of a contractual modification, cannot cover the pillion rider. There is no representation for the owner and rider of the motor cycle, though served. 5. We are satisfied that the contention of the learned counsel for the insurance company deserves acceptance. In the total absence of any attempt to support the impugned order by any one, we find it easy to conclude that the policy does not cover the MACAs676/2005 & 2368/2008 -:3:- liability of the owner in favour of the claimant. MACA No.2368 of 2008 deserves to be allowed. 6.Coming to the challenge raised in MACA No.676 of 2005, as the insurer is not being made liable learned counsel for the appellant does not seriously pursue the appeal. Learned counsel for the insurance company submits that the amount has already been deposited before the Tribunal and the same has already been withdrawn by the claimant. Learned counsel for the insurance company in these circumstances, prays that the insurer may be permitted to recover the amount from the rider and the owner of the motor cycle. We agree that a direction to that effect can be issued. We make it clear that the insurer will not be entitled to recover the same from the claimant. The delay has been condoned subject to that condition. In the result, A. (1)MACA No.2368/2008 is allowed. (2)It is held that the appellant insurer shall be entitled to recover the amount of compensation which he has MACAs676/2005 & 2368/2008 -:4:- already deposited before Tribunal, (and which has been released in favour of the claimant) from the owner and driver of the vehicle. B. MACA 676/2005 is dismissed. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE Cdp/-