IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 MACA.No. 1740 of 2007(F) ----------------------- OPMV.1126/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/ PETITIONER IN O.P.(MV) ---------------------------------- DILEEP, S/O KUMARAN, CHEETTIPPARAMBIL HOUSE, CHERUPADY DESOM, ALATHUR TALUK, MUKUNDAPURAM TALUK. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS 1 AND 3 IN O.P.(MV) ---------------------------------- 1. RAJEENDRAN, S/O KUMARAN, CHEETTIPPARAMBIL HOUSE, CHERUPADY, ALATHUR TALUK. 2. UNITED INDIA INSURANCE CO. LTD., SREEKUMAR BUILDINGS, SOUTH JUNCTION, CHALAKUDY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J -------------------------- M.A.C.A.No. 1740 OF 2007 -------------------------------------------- Dated this the 15th day of October, 2008 J U D G M E N T This appeal is preferred against the award of the Motor Accident Claims Tribunal, Irinjalakuda in O.P.(MV) 1126/01. The claimant sustained injuries in a road accident. He was a pillion rider. He sustained a compound fracture with crush injury on the little toe. The Tribunal awarded him an compensation of Rs. 18,014/- and exonerated the Insurance Company from the liability on the ground that the policy does not show payment of additional premium. Aggrieved by the quantum as well as exoneration of the liability, the claimant has come up in appeal. Though notice is served on all, respondents have not entered appearance. 2. Heard the learned counsel for the appellant. So far as the quantum is concerned, it is seen that claimant had sustained a compound fracture of the left little toe with a crush injury. He was inpatient in the hospital for three days. The Tribunal had taken note of the entire injuries and suffering sustained by the claimant M.A.C.A.No. 1740/07 -2- and awarded adequate compensation. Therefore the quantum does not call for any interference. 3. So far as the liability is concerned, admittedly the vehicle was covered by comprehensive policy. It does not mean that the comprehensive policy will take in the case of the pillion rider also. But there are conditions attached to the comprehensive policy which are seen produced in many cases where there is a specific clause covering the risk of a person carried in a motor bike provided he is not carried for hire or reward. This very clause came up for consideration before the Division Bench of this Court in the decision of New India Assurance Company Ltd. v. Hydrose and Others [2008(3) KHC 522]. Unfortunately, the conditions of policy are not seen produced. Therefore the Tribunal did not have the opportunity to go through the policy to find out whether a pillion rider is covered even without payment of wider premium. In the decision referred by the Apex Court in United India Insurance Co. Ltd. v.Tilak Singh [A.I.R. 2006 SC 1576] , it was only an Act only policy wherein there was no additional payment of premium. Therefore the Apex Court held that the status of a person is that of a gratuitous passenger too. What are the terms and M.A.C.A.No. 1740/07 -3- conditions of the policy, is material to decide this case. Therefore the award passed by the Tribunal, so far as the liability is concerned, requires interference. Therefore the award passed by the Tribunal is set aside and the appeal is remanded back to the Tribunal with a direction to permit the appellant to call for the conditions of policy either from the owner or from the Insurance Company. Thereafter the court shall decide the same in accordance with the decisions on the point. The appellant is directed to appear before the court below on 25.11.2008 and he shall take out notice to the Insurance Company as it did not enter appearance before this court. M.N. KRISHNAN, JUDGE. vkm