IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 MACA.No. 573 of 2008() -------------------------------- OPMV.1303/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S):PETITIONER IN O.P.(MV) 1303/02. --------------------------- BABU K.JOSEPH, AGED 52 YEARS, S/O. JOSEPH, KOLLAPARAMBIL, SHANTHI LANE, THOTTAKKATTUKARA, ALUVA. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. (ALUVA) RESPONDENT(S): RESPONDENTS IN O.P.(MV) 1303/02. ---------------------------- 1. AJO JOHN, PARAMBIL HOUSE, KARUKUTTY, ANGAMALY 683 578. 2. J.ROY, S/O. JOSEPH, KOLLAPARAMBIL, EAST DESOM CHENGAMANAD - 683 576. 3. THE NATIONAL INSURANCE CO.LTD., URUMBATH BUILDING, PUMP JUNCTION, R.S.ROAD, ALUVA - 683 101. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA No.573 OF 2008 ===================== Dated this the 19th day of January 2009 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)No.1303 of 2002. It is the case of the claimant that while travelling as a pillion rider on account of the negligence of the 2nd respondent, the vehicles collided resulting in injuries to him. On the other hand, the insurance company would contend that he was not the pillion rider but the rider himself and further even if he is a pillion rider he is not covered by the policy. 2. In the trial court, Exts.A1 to A6, B1, B2 and X1 were marked. PW1 and Dw1 were examined. The trial court on analysis of the materials arrived at a decision that he was the rider and further held that even if he is a pillion rider he is not covered by the policy and therefore dismissed the case. It is against that decision, the claimant has come up in appeal. 3. Heard the counsel for the appellant as well as the counsel for the insurance company. Learned counsel for the appellant very strongly contends before me that the Tribunal has erred in arriving at a decision that MACA 573/2008 -:2:- he was driving the vehicle. At the out set it has to be stated that there is no dispute regarding the accident. The only question is who was riding the vehicle at the time of accident. The Tribunal negatived the prayer of the claimant on the basis that if really there was an accident as spoken to by PW1, the rider of the bike should have also sustained injuries and in case he had not sustained injury he would have taken him to the hospital and that the delay of 13 days in registering the crime also goes against the case of the claimant. 4. On the contra learned counsel for the appellant would contend that it was his brother, the 2nd respondent who had taken him to the hospital and he did not sustain injuries and he submitted that most probably he would have been more conscious of the impact after applying the break so that he did not fall down whereas the pillion rider fell down. It is also contended by him that the delay was on the hospital authorities in not intimating the accident to the police. Learned counsel also made available before me a copy of the wound certificate wherein the status of the injured is shown as pillion rider. It is also recorded therein that he has been brought there by a relative. The Doctor was examined as PW2 in this case and he has deposed before court that the word 'pillion rider' was made by him in the wound certificate as per the information furnished. Just because the word 'relative' MACA 573/2008 -:3:- is noted there, one cannot jump to the conclusion that it was not the brother. The brother is also a relative. Similarly, it is seen that there is delay from the hospital authorities in intimating the police. So a mere delay of 13 days cannot be found against the claimant for negativing his claim. It was not a private complaint but it was only a case registered by the police. Thereafter the police conducted proper investigation and laid a charge sheet against the 2nd respondent and the case was proceeded with. Against this concrete evidence there is no evidence to show it is otherwise. The mere suspicion in the mind of an authority or court shall not be a substitute for proof. When there is records furnished and it is explained and even Doctor is examined it will not be proper to arrive at a decision ignoring all these materials that what is stated is not true. The materials available are one sided which leans in favour of the claimant and therefore I hold that the claimant has succeeded in proving that he was travelling as a pillion rider and the accident took place on account of his negligence. Therefore the said finding of the Tribunal is vacated. 5.The next question is regarding compensation. The wound certificate would show that he had sustained abrasion on the left lip and loosening of two teeth. These two teeth were extracted later. The injured was aged 47 years and he was an auto consultant by profession. I proceed to fix the MACA 573/2008 -:4:- compensation as follows: Towards medical expenses I grant him Rs.1,500/-, towards loss of earning, a sum of Rs.2,000/- is awarded, for loss of teeth an amount of Rs.4,000/- is awarded and towards pain and suffering Rs.3,000/- is awarded, making a total of Rs.10,500/-. 6.Lastly the question arises regarding the liability of the insurance company. The insurance company has got an alternative contention that being a pillion rider and as no additional premium is paid in the light of the dictum laid down in United India Insurance Co.Ltd. v. Tilak Singh(2006) 4 SCC 404), the insurance company is not bound to indemnify. It is true that if it is only an Act only policy and no premium is paid to cover the risk of a pillion rider, the status of that person will be that of a gratuitous passenger. But the policy issued in this case is a package policy. The conditions of package policy is made available before me which would show that the company had undertaken to cover the risk of the death or bodily injury to any person carried in a vehicle. This clause came up for considered before a Division Bench of this Court in the decision reported in New India Assurance Company Ltd. v. Hydrose and others(2008(3)KHC 522(DB). The Division Bench held that when the terms and conditions of the contract covers the risk of a person then there need not be any payment of additional premium and therefore held that the terms and conditions of the policy MACA 573/2008 -:5:- cover the risk of a person in the light of the specific contract. Since the very same clause is available in this case as well, the insurance company is liable to indemnify the owner as per the terms and conditions. Therefore it cannot get exonerated from the liability. Therefore the MACA is allowed and the award under challenge is set aside. The claimant is awarded a compensation of Rs.10,500/- with 7.5% interest on the said sum from the date of petition till realisation and the 3rd respondent insurance company is directed to deposit the amount within 60 days from the date of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE Cdp/-