IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 MACA.No. 1630 of 2007() ----------------------------------- OPMV.792/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANT/SUPPLY.4TH RESPONDENT ----------------------- THE NATIONAL INSURANCE CO.LTD., PALAKKAD, REPRESENTED BY ITS MANAGER, MOTOR THIRD PARTY CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT/RESPONDENTS 1 & 2 --------------------------- 1. AHAMMAD KABEER, S/O.C.K.ABDUL KHADAR, REPRESENTED BY FATHER AND GUARDIAN, C.K.ABDUL KHADER, MAPPILAPOTTA VANDAZHI VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT. 2. K.V.MOHANDAS, S/O.LATE VASU, MARUTHAMPADAM, ALATHUR TALUK, PALAKKAD. 3. SUNDARAN, S/O.PONNANDI, NELLIKKAD HOUSE, VANDAZHI, ALATHUR TALUK. ADV. SRI.RAJESH SIVARAMANKUTTY FOR R1 SRI.U.BALAGANGADHARAN FOR R.3 SRI.JACOB SEBASTIAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA No.1630 OF 2007 ===================== Dated this the 5th day of November 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Palakkad in O.P.(MV)No.792 of 2000. The short question that arises for determination in the appeal is regarding the liability of the insurance company. The Tribunal found that the boy injured in the accident was a gratuitous passenger in a tractor and ultimately held that the insurance company has to pay the amount and get it reimbursed from the owner. It is that finding which is challenged by the insurance company. 2. Learned counsel for the appellant has cited before me the decision of the Apex Court in National Insurance Co.Ltd. v. Bommithi Subbhayamma(2005(2) KLT SN 58 at page 46). The Apex Court held that for a gratuitous passenger in a goods vehicle the insurer is not liable to pay compensation. It has to be held that when a person is found to be a gratuitous passenger then the question to be decided is whether he is covered under the policy issued by the insurance company. Section 147 of the Motor Vehicles Act statutorily covers the risk of only certain named MACA 1630/2007 -:2:- persons for which no additional premium is required. Any other person other than a 3rd party except the other persons mentioned therein would have the status of only gratuitous passenger. So the question is what will be the liability of the insurance company with respect to a gratuitous passenger. Right from Swaran Singh's case (2004(1) KLT 781(SC), the Apex Court has held that when there is a breach of policy condition, that too, with respect to a 3rd party the insurance company cannot get absolved from the liability to a 3rd party but it can get it reimbursed from the owner. Or, in other words, the person must be a 3rd party. It has been held by the Apex Court that a gratuitous passenger carried in a vehicle is not a 3rd party and he is not a person covered by the policy. Actually it is not a breach of policy condition but it is the non-coverage of that person under the policy. When there is no coverage the insurance company has to be totally exonerated from the liability and therefore I reverse the finding of the Tribunal and hold that the insurance company is not to be made liable to pay the compensation. But the claimant is at liberty to proceed against respondents 1 and 2 in the claim petition for realising the amount jointly and severally. If any amount is deposited by the insurance company for the purpose of preferring this appeal, that amount be reimbursed to the insurance MACA 1630/2007 -:3:- company on appropriate application. MACA is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-