IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 MACA.No. 2193 of 2007(B) ------------------------------------- O.P.(MV).NO.912/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA. .................... APPELLANT/3RD RESPONDENT: ----------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS ADMINISTRATIVE OFFICER, 3RD PARTY WING, OMANA BUILDING, PADMA JUNCTION, KOCHI-35. BY ADV. SRI.P.R.RAMACHANDRA MENON. RESPONDENTS/ PETITIONER AND RESPONDENTS 1 & 2 RESPECTIVELY: --------------------------------------------------------------------------------------------------------- 1. P.A.NAZAR, PALLIPARAMBIL, NADACKAL, ERATTUPETTA. 2. BASHEER, ELAVUMKATHAZHAYIL, ERATTUPETTA. 3. SHERIFF, S/O MUHAMMED, PALATTU HOUSE, THALANADU KARA, THALANADU VILLAGE. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO. 2193/2007-B: ORDER ON I.A. NO. 2816/2007 IN M.A.C.A. NO. 2193/2007-B DISMISSED 20/08/2008. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2193 OF 2007 = = = = = = = = = = = = = = = Dated this the 20th day of August, 2008. J U D G M E N T Notice on delay condonation application has gone and respondents have not entered appearance. The matter has come up for admission today. 2. This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Pala in O.P.(MV)912/04. The claimant in the said case was awarded a compensation of Rs.83,150/- with 7% interest and the insurance company was directed to deposit the amount. It is against that decision, the insurance company has come in appeal. It is the contention of the insurance company that the claimant was a passenger in a private car and the policy issued does not cover the passengers and therefore in the light of the decision in Asha Rani's case (New India Assurance Co. Ltd. v. Asha Rani 2003 (1) KLT 165) and Tilak Singh's case (United India Insurance Co. Ltd. v. Tilak Singh 2006 (2) KLT 884(SC) the insurance company is not bound M.A.C.A. 2193 OF 2007 -:2:- to indemnify the owner. The copy of the policy was produced. Ext.B1 was only a cover note of the policy and relying upon the cover note the Tribunal presumed so many things and held that the policy is a package policy and that in most of the package policies gratuitous passenger is covered by the terms of the policy. I am afraid that such a decision cannot be arrived by any authority on the basis of conjectures and surmises. Equally, I have to mention that when an insurance company is pleading exoneration of the liability, some responsibility is cast upon them also to produce the policy conditions or the policy and establish before the Tribunal that as per the terms and conditions of the policy, a passenger in a private car is not covered. Unfortunately, it has not been done in this case. The Tribunal relying upon the decision reported in Amrit Lal Sood v. Kaushalya Devi Thapar 1998 ACJ 531 where the Court held that the contract of insurance can cover or the terms and conditions can cover a particular person. So it goes without saying that without the policy or the conditions M.A.C.A. 2193 OF 2007 -:3:- of the policy one cannot arrive at a proper decision. Therefore the award under challenge is set aside so far as it relates to the liability of the insurance company is concerned and the matter is remitted back to the Tribunal for fresh consideration regarding the liability of the insurance company. The insurance company is permitted to produce policy as well as the conditions of the policy and let in evidence on that behalf and the claimant as well as the owner are also permitted to do the same. Since the owner and the claimant has not appeared before this Court it is only just that notice is taken by the insurance company to those persons after its first appearance before the Tribunal. The insurance company is directed to appear before the Tribunal on 6.10.08. M.N. KRISHNAN, JUDGE. ul/-