IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 MACA.No. 1822 of 2008() ---------------------------------- OPMV.349/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, THODUPUZHA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY MR.MATHEWS JACOB, SENIOR ADVOCATE MR.P.JACOB MATHEW RESPONDENT(S): PETITIONER AND RESPONDENTS 1 & 2 ------------------------- 1. ASHRAF, S/O.ABDUL KARIM, INJAKKATTIL HOUSE, KARIKKODE P.O., THODUPUZHA TALUK. 2. SULAIMAN, S/O.SAITHU MUHAMMED, KANDOTHUMATTEL HOUSE, KUMARAMANGALAM VILLAGE, VENGELLOOR KARA, THODUPUZHA TALUK. 3. NIZAR, S/O.KUTTIYAPPAN, VADAKKECHERIKOTTIL HOUSE, KUMARAMANGALAM VILLAGE, VENGELLOOR KARA, THODUPUZHA TALUK. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA.NO.2180/2008 IN MACA. NO.1822/2008 DISMISSED 09/09/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.S. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1822 OF 2008 = = = = = = = = = = = = = = = Dated this the 9th day of September, 2009. 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)349/04. The claimant was travelling as a pillion rider in a scooter bearing Reg.No.KL-6A-4294. Due to the negligent driving by the rider the scooter overturned resulting in injuries to the claimant. The Tribunal on an exhaustive consideration of the materials available passed an award in favour of the claimant for Rs.44,700/-. It directed the insurance company to pay the amount and get it reimbursed from the owner thereunder namely the 2nd respondent in the O.P(MV). It is against that decision the insurance company has come up in appeal. 2. The point argued before me is to the effect that the vehicle namely the two wheeler was only having an Act only Policy and the claimant was a pillion rider. In the light of the dictum laid down in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh)2006 (2) KLT M.A.C.A. 1822 OF 2008 -:2:- 884(SC) it is argued that the status of a pillion rider is that of a gratuitous passenger who is not covered by an Act only policy and therefore the insurance company is not liable to pay the amount as the contract does not envisage such a situation. The learned Tribunal had considered the matter in paragraph 14 of the award. He had referred to the endorsement No.64 wherein there is a mention about the pillion rider and therefore it has come to the conclusion that endorsement No.64 covers risk of a pillion rider and therefore the insurance company is liable to pay the amount. Learned counsel had produced a copy of the policy along with the endorsement for perusal before me. She had specifically referred to endorsement 64 of the Indian Motor Tariff Act. It deal with a situation that it covers the risk of a pillion rider provided that in the accident death has resulted or it has caused permanent disability. Or in other words the coverage is only with respect to a situation where the person travelling in the two wheeler has either died or has suffered permanent disability on account of the injuries sustained in the accident. Now the learned counsel for the insurance company had drawn my attention to prove the fact that there is nothing M.A.C.A. 1822 OF 2008 -:3:- before the Tribunal to show that the claimant had sustained permanent disability on account of the injuries sustained in the accident. It is true that he had sustained a fracture of the tibia and fibula but no disability certificate has been produced and the award also does not show that the accident has resulted in any permanent disability to the claimant. So it has to be held that (1) on account of the accident death has not resulted, (2) on account of the accident no permanent disability has been caused to the petitioner namely the claimant. When it is so endorsement No.64 of the Indian Motor Tariff Act does not come to the rescue of the claimant to get compensation. Then what will be the legal position is the next question. 3. We are only having a policy which is an Act only policy. An Act only policy covers statutory risk of a third party and as the pillion rider is not a third party he is not covered by the contract of insurance or by the statutory liability. Therefore the Tribunal erred in arriving at the decision that the insurance company is bound to indemnify the insured. So the insurance company is exonerated from the liability in toto. Since the insurance company is M.A.C.A. 1822 OF 2008 -:4:- exonerated from the liability the question of pay and recover also does not arise. Therefore the appeal is disposed of as follows. 4. The award of the Tribunal casting the liability on the insurance company to pay the amount and recover from the owner is set aside. It is found that the insurance company is entitled to total exoneration of the liability. In the light of the same the claimant will be only entitled to claim the compensation jointly and severally from respondents 1 and 2 in the claim petition. If any amount is deposited by the insurance company as ordered by the Court below it is entitled to get reimbursement of the same on proper application. M.N. KRISHNAN, JUDGE. ul/-