IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 MACA.No. 2550 of 2009() ----------------------------------- OPMV.1439/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- NEW INDIA ASSURANCE CO.LTD., NEYYATTINKARA,REP.BY THE BRANCH MANAGER. BY ADV. MR.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT AND R1 & 2 ------------------------- 1. CHANDRAN NAIR,S/O.MADHAVAN PILLAI, THIRUVATHIRA,MAMOOTUVILAI, ANTHIYOORKONAM,MAIAYINKEEZHU. 2. K.SUBRAMANIAN, TC 23/846,VALIYASALA,THIRUVANANTHAPURAM. 3. REJENDRAN,S/O.CHELLAPPAN CHETTIYAR, THODARIKATHU VEEDU,KATTAKADA POST. BY ADVS. MR.M.R.SASITH MR.R.S.KALKURA MR.M.S.KALESH MR.HARISH GOPINATH MR.V.VINAY MENON MR.M.AJAY (IRUMPANAM) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.3000/2009 IN MACA. NO.2550/2009 DISMISSED 08/02/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2550 OF 2009 = = = = = = = = = = = = = = = Dated this the 8th day of February, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Neyyattinkara in O.P.(MV) 1439/03. It was an application filed u/s 163A of the M.V.Act and the Tribunal has awarded a compensation of Rs.30,777/- with 7.5% and directed the insurance company to pay the amount. The insurance company has come up in appeal challenging its liability. 2. So far as the quantum of compensation is concerned when the multiplier as envisaged in 2009 ACJ 1298(Sarala Varma v. Delhi Transport Corporation) is taken into consideration the appropriate multiplier for a person aged 38 is 15 and therefore the compensation has to be reduced by Rs.1,200/- in this case which will make the total sum as Rs.29,577/-. M.A.C.A. 2550 OF 2009 -:2:- 3. Now the larger question is regarding the liability of the insurance company. The learned Tribunal was fully conscious of the fact that the pillion rider is not covered by an Act only policy. It had referred to the decision reported in General Manager, United Insurance Co. Ltd. v. M. Lakshmi (AIR 2009 S.C.626) to hold so. By relying upon the non obstante clause u/s 163A of the M.V.Act the Tribunal held that the insurance company cannot take such a defence in a case arising out of S.163A. I am afraid that the Tribunal has erred in applying the said principles in the light of the decision of the Apex Court reported in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781). In paragraph 102(ii) of the said judgment the Apex Court has made it very clear that, “Insurer is entitled to raise a defence in a claim petition filed u/s 163A or S.166 of the M.V.Act, 1988, inter alia, in terms of S.149(2)(a)(ii) of the said Act.” When it is so then the said defence is available to the insurance company. By virtue of the fact that it is only an M.A.C.A. 2550 OF 2009 -:3:- Act only policy it cannot be saddled with the liability to pay compensation. Therefore the award by the Tribunal making the insurance company liable to pay the amount is set aside and the claimant is awarded a compensation of Rs.29,577/- with 7.5% interest from 23.9.2003 and he is entitled to realise the said amount from the owner of the vehicle. M.N. KRISHNAN, JUDGE. ul/-