IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 MACA.No. 430 of 2010() --------------------------------- O.P. NO.1989/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR. ......... APPELLANT(S): (PETITIONER IN O.P.(MV) 1989/2003) ---------------------------------------------------------------------------- BABY, S/O.VARGHESE, AGED 47 YEARS, KOCHERY HOUSE, VENGOOR KARA, VENGOOR P.O., VENGOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI RESPONDENT(S): (RESPONDENT NO.3 IN OP(MV) 1989/2003) ---------------------------------------------------- 1. WILSON ALIAS BILSON, S/O.CHAKAPPAN, THANNIKOTTU HOUSE, THOONGALY BHAGOM VENGOOR P.O., VENGOOR. 2. NATIONAL INSURANCE CO.LTD., P.B.NO.6, M.M.JUNCTION, KOLENCHERY, KOLENCHERY P.O., ERNAKULAM DT. R2 BY ADV.SRI.E.M.JOSEPH R3 BY ADV. SRI.N.VIMALAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 430 OF 2010 = = = = = = = = = = = = = = = Dated this the 27th day of January, 2011. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)1989/03. The claimant, who sustained injuries in a road accident has been awarded a compensation of Rs.29,070/-. The insurance company has been exonerated from the liability and the first respondent in the claim petition is made liable for the amount. It is against that decision the claimant has come up in appeal. 2. Heard the learned counsel for the appellant as well as the insurance company. The first point to be considered is regarding the exoneration of the insurance company from M.A.C.A. 430 OF 2010 -:2:- the liability on the ground the policy does not cover the risk of such persons. Admittedly the vehicle is covered by a comprehensive/package policy. By virtue of the clarificatory circular dated 16.11.2009 issued by the Insurance Regulatory and Development Authority the persons carried in a two wheeler who are covered under the terms and conditions of Standard Motor Package Policy is to be indemnified by the insurance company. Further the conditions of such policies came up for consideration before two Division Benches of this Court in the decisions reported in New India Assurance Co. Ltd. v. Hydrose (2008 (3) KLT 778) and Mathew v. Shaji Mathew (2009 (3) KLT 813) By both those decisions the Court had made it clear that the terms and conditions of a comprehensive policy covers the risk of a pillion rider without additional premium. Therefore the finding of the Tribunal exonerating the insurance company M.A.C.A. 430 OF 2010 -:3:- from the liability is incorrect and it is made liable and I do so. 3. Now the next question is regarding the licence. It is submitted that the first respondent in the claim petition did not have a valid driving licence. The insurance company moved an application for production of the licence but nobody produced it and therefore the Court drew an adverse inference. But as the Court found that the insurance company is not liable it does not elaborate on that finding. The mere non production of a driving licence by the owner who is exparte in the proceedings is not sufficient to discharge the burden of proof on the insurance company. Therefore to consider the question whether the driver did have a valid driving licence or not, the matter requires further consideration. Therefore on that aspect I grant an opportunity to all concerned. M.A.C.A. 430 OF 2010 -:4:- 4. In the result the MACA is partly allowed and it is made clear that the policy covers the claimant who was a pillion rider but the matter is remitted back to consider the question whether the driver did have a valid driving licence at the time of the accident. For the said purpose all concerned are permitted to produce both documentary as well as oral evidence in support of their respective contentions. It is also made clear that at any rate the claimant will not be entitled to any interest between the period from 12.11.07 to 22.1.10. Parties are directed to appear before the Tribunal on 28.2.11. M.N. KRISHNAN, JUDGE. ul/-