IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 MACA.No. 367 of 2006(B) -------------------------------- OPMV.358/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT:2ND RESPONDENT ---------------------------------------- THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE-1, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT/CLAIMANT: -------------------------------- 1. GEETHA HARI, W/O.HARIHARAN NAIR, PULIAKAMPURATH HOUSE, MAMPUZHA, KULATTIKARA P.O., ERNAKULAM DISTRICT. 2. P.D.HARIHARAN NAIR, KIZHAKKETHAIYIL HOUSE, KULAITTIKARA P.O., KANJIRAMATTOM, ERNAKULAM. BY ADV. SRI.BENOY K.KADAVAN FOR R1 SRI.VIJU ABRAHAM FOR R1 SRI.K.R.PRAMOTH KUMAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 367 OF 2006 = = = = = = = = = = = = = = = Dated this the 29th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)358/00. The claimant sustained injuries in a road accident and he has been awarded a compensation of Rs.85,000/- with 7.5% interest. It is against that decision, the insurance company has come up in appeal. 2. Admittedly, the petition is one for compensation filed under Section 166 of the M.V. Act. When a petition is filed u/s 166 of the M.V. Act, the party has to prove the negligence of the rider then only it can make the owner vicariously liable for the same and further on account of the contract of insurance the Company can be directed to indemnify the owner. 3. A perusal of the award would show that it was alleged in the petition that it was the rash and negligent driving of the husband which had resulted in the accident. M.A.C.A. 367 OF 2006 -:2:- When she mounted the box and faced the cross-examination she had categorically asserted that it was not on account of her husband's negligence that the accident had taken place. Still the Tribunal held that what is required is only that accident had arisen out of the use of the motor vehicle. When a claim petition is filed u/s 166 of the M.V. Act, it is imperative that negligence has to be pleaded and proved. There are sections like 92-A under the old Act which is equivalent to Sec.140 of the present Act and also 163-A of the Act which deals with a situation where the person who files an application is not called upon to prove the negligence. So there is a difference between the claim under Section 163-A and S.166. Under S.166 unless the negligence is proved there cannot be any liability on the rider much less by way of vicarious liability on the owner. When a claim against a driver and owner is not sustainable, necessarily, insurance company also cannot be saddled with any liability. Further this is a case where the petitioner was only a pillion rider and she may not be entitled to claim compensation M.A.C.A. 367 OF 2006 -:3:- from the insurance company for the reason that her status will be that of a gratuitous passenger not covered by the policy. For all these reasons I find that the award of the Tribunal requires interference. Therefore the appeal is allowed and the claim petition is dismissed without costs. M.N. KRISHNAN, JUDGE. ul/-