IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 MACA.No. 2142 of 2006(A) ------------------------ OPMV.228/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT/3RD RESPONDENT: ------------------------------------------------ THE ORIENTAL INSURANCE CO.LTD., PUNALUR, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: CLAIMANT:RESPONDENTS: --------------------------------------------------------------------- 1. SWAMIDAS, S/O.NAGAMANI, S.J.BHAVAN, NADUVANJAMKANDAM, KARODE P.O., NEYYATTINKARA TALUK, (NOW RESIDING AT SREEMANGALAM, NEAR POONGODE TEMPLE, IKKARAKKONAM, VALACODE P.O. 2. N.KUMAR.V.C, NADUKUNNIL VEEDU, AYILARA P.O., ANCHAL. 3. GOPALAKRISHNAN, S/O.KUNJURAMAN, KONATHU PUTHEN VEEDU, KAKKODE, IKKARAKONAM, VALACODE P.O., PUNALUR. BY ADV. SRI.P.K.RAVI KRISHNAN - R1 SMT.O.H.NAZEEBA - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.2381/2006 IN M.A.C.A.NO.2142/2006 DISMISSED 26/06/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2142 OF 2006 = = = = = = = = = = = = = = = Dated this the 26th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Punalur in O.P.(MV)228/03. The Tribunal has awarded a compensation of Rs.99,440/- and directed the insurance company to pay the amount. It is against that decision, the Company has come up in appeal. 2. The Company has raised two contentions in the written statement holding that the petitioner is the owner of the vehicle and also the contention that the vehicle was insured only as an Act only policy and therefore the petitioner is not covered by the insurance policy. Ext.B1 is a copy of the policy. The averment in the petition would show that the claimant was only travelling as a passenger in a jeep. It was a private jeep. He was a person who was being carried in the vehicle not for hire or reward. So the status of him is that of a gratuitous passenger. When the policy is only an Act only policy, then gratuitous passenger is not M.A.C.A. 2142 OF 2006 -:2:- covered. The Apex Court in the decision reported in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh (2006 (2) KLT 884)] held that a statutory insurance policy intended to cover risk to life or damage to properties of third parties will not cover the risk of death or injury to a gratuitous passenger carried in a private vehicle. The Apex Court also held that although the observations made in Asha Rani case, 2003 (1) KLT 165 were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. So, in the light of this pronouncement, and as the policy is only an Act only policy, the insurance company cannot be saddled with the liability. A gratuitous passenger or a pillion rider is not a third party for the purpose of attributing the provisions of the Act and therefore one cannot direct the insurance company to pay the amount and get it reimbursed. 3. There is another reason also for the same because it is not a breach of policy condition that exonerate the M.A.C.A. 2142 OF 2006 -:3:- liability but it is the very policy that exonerates certain types. Therefore they cannot be directed to pay and get it reimbursed. Therefore the appeal filed by the insurance company is allowed and it is exonerated from the liability and respondents 1 and 2 are made jointly and severally liable to pay the amount and the claimant is at liberty to realise it from them in accordance with law. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-