IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 MACA.No. 2330 of 2007(F) ---------------------------------- OPMV.1065/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/3RD RESPONDENT ---------------------------------------- M/S.NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, KOTTAYAM REPRESENTED BY ITS MANAGER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENTS: PETITIONER AND RESPONDENTS 1, 2 AND 4 -------------------------------------------------------------------- 1. SASIDHARAN NAIR, S/O.NEELAKANDAN NAIR, SAKTHI VILAS HOUSE, BLOCK NO.733, K.P.COLONY, CHOTTUPARA KARA, PARATHODU VILLAGE. 2. SALASH THOMAS, PARAMPUZHAYIL, KADAPATTOOR P.O. PALA. 3. JOSE, S/O.JACOB, VANDANATHUVAYALIL HOUSE, THOVALPADY, RAMAKALMEDU P.O., PARATHODU VILLAGE. 4. JACOB, S/O.JOSEPH, VANDANATHUVAYALIL HOUSE, TOVALPADY BHAGOM, CHOTTUPARA KARA, RAMAKALMEDU P.O., PARATHODU VILLAGE. BY ADV. SRI.JOBI JOSE KONDODY FOR R2 SRI.JOSE JOSEPH ARAYAKUNNEL FOR R1 SRI.S.DILEEP (KALLAR) FOR R3 & 4 SRI.NAVEEN THOMAS FOR R3 & 4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.3050 OF 2007 IN M.A.C.A. NO. 2330 OF 2007 DISMISSED 28/8/08 SD/- M.N. KRISHNAN, JUDGE. [ True Copy ] P.A. TO JUDGE. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2330 OF 2007 = = = = = = = = = = = = = = = Dated this the 28th day of August, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)1065/97. As per the said award the Tribunal awarded him a compensation of Rs.40,200/- in favour of the claimant and directed the insurance company to deposit the amount and later get it recovered from the 4th respondent. The insurance company has challenged that finding on the ground that there cannot be any liability for the reason that it was only an Act only policy and the vehicle was registered as a private vehicle and therefore any persons carried in a private vehicle would have the status of a gratuitous passengers and are not covered by the insurance policy. Unfortunately, this contention has not been looked into at all by the Tribunal and the Tribunal after discussion and on that basis found that R4 was the owner of the vehicle on the date of the accident. Admittedly, the vehicle stands registered in the name of the M.A.C.A. 2330 OF 2007 -:2:- first respondent in the claim petition and the insurance policy also stands in his name and the insurance contract is between R1 and the insurance company. A Division Bench of this Court in the decision reported in Ashraf v. Fathima (2004 (2) KLT 598) had held that, “Here, the insurer is still the registered owner as admittedly, the appellant, the registered owner, did not invoke the matter of transfer to the insurance company and insurance is not transferred. The insurance company cannot recover it from the defacto owner because there is no contractual agreement between the defacto owner and the insurance company. The insurance company can recover it only from the insured.” 2. So the finding of the Tribunal that insurance company has to recover it from R4 may not be correct in the light of the decision referred to above. 3. The most important question to be considered is whether the insurance company is liable to be exonerated from the liability. If a vehicle is registered as a private vehicle and M.A.C.A. 2330 OF 2007 -:3:- it is used as a taxi and unless there are other conditions it will only amount to breach of policy conditions which may result in the insurance company paying he amount and recovering it back from the owner. But when there is a specific condition that the policy issued to the jeep is an Act only policy and it was a private vehicle then the status of the persons travelling in that jeep will be that of gratuitous passengers who are not liable to be covered in the light of the decision of the Apex Court in Asha Rani's case, New India Assurance Co. Ltd. v. Asha Rani 2003 (1) KLT 165 as well as Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh (2006 (2) KLT 884). Unfortunately, the Tribunal has not considered this aspect at all and therefore the matter requires reconsideration. Therefore the award under challenge so far as it relates to the liability is concerned is set aside and the Tribunal is directed to consider the question whether the jeep being registered as a private jeep, whether the passengers travelling in such a jeep will have the status of a gratuitous M.A.C.A. 2330 OF 2007 -:4:- passengers. If it is so, necessarily, they will not be covered by the policy which would entitle the insurance company to get exonerated from the liability. In any event, if the insurance company is bound to make the payment whether it will be entitled to recover it only from R1 and in such a situation one has to provide a provision whereby enabling R1 to receive it from R4. Parties are directed to appear before the Tribunal on 20.10.08. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-