IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 MACA.No. 2977 of 2009() ----------------------- OPMV.1128/1996 of ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... APPELLANT(S): RESPONDENT NO.2: ------------------------------------------------------ THE MANAGER, THE NEW INDIA ASSURANCE COMPANY, KAYAMKULAM. BY ADVS. MR.KKM.SHERIF, MR.A.A.ZIYAD RAHMAN. RESPONDENT(S): PETITIONERS AND RESPONDENT NO.1: --------------------------------------------------------------------------------------- 1. T.R.GOPI, S/O.RAGHAVAN, THADATHIL KOZHAKATHIL, AKKANATTUKARA MURI, KALLUMALA P.O., MAVELIKKARA. 2. M.M.ABRAHAM, S/O.MATHEW MATHEW, DAD BRUSH INDUSTRIES, AKKANATTUKARA MURI, KALLUMALA P.O., MAVELIKKARA. R1 BY ADV. MR.N.SURESH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.3570/2009 IN MACA.NO.2977/2009 DISMISSED 18/01/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2977 OF 2009 = = = = = = = = = = = = = = = Dated this the 18th day of January, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Mavelikkara in O.P.(MV)1128/96. The question that arises for determination is regarding the liability of the insurance company in the case of an Act only policy. There is no dispute that the vehicle is covered by only an Act only policy. The learned Tribunal extracted the general exceptions especially clause 4 which reads as follows. “Except so far as is necessary to meet the requirement of the Motor Vehicles Act the Company shall not be liable in respect of death or bodily injury to any person (other than a passenger carried in or upon or entering or mounting or alighting from the Motor Vehicle at the time of occurrence of the event out of which any claim arises.” M.A.C.A. 2977 OF 2009 -:2:- In a package policy the said condition would read as: “Subject to the limits of liability etc. the death or bodily injury to any person including occupants carried in the vehicle provided such occupants are not carried for hire or reward.” The words 'including occupants carried in the vehicle' is absent in an Act only policy. In the decision reported in New India Assurance Co. Ltd. v. Hydrose 2008 (3) KLT 778, the clause that came up for consideration was the clause relating to 'including occupants carried in a vehicle'. It was under these circumstances the Division Bench of this Court in New India Assurance Co. Ltd. v. Hydrose 2008 (3) KLT 778 held that conditions of policy cover the risk of such persons. But so far as an Act only policy is concerned such a clause is not there and therefore strictly the dictum laid down in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh)2006 (2) KLT 884(SC) will apply and therefore the Tribunal was in error in holding that the insurance company is liable. Therefore the award under M.A.C.A. 2977 OF 2009 -:3:- challenge is modified and the liability of the insurance company is set aside and it is exonerated from the liability. I make it very clear that the claimant will be at liberty to proceed against the owner for realisation of the amount. M.N. KRISHNAN, JUDGE. ul/-