IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 MACA.No. 577 of 2007(G) ----------------------------------- (O.P(MV).NO.956/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE) .................... APPELLANT/ 3RD RESPONDENT: ----------------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, MANJERI, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY MR.MATHEWS JACOB, SENIOR ADVOCATE, ADV. MR.P.JACOB MATHEW. RESPONDENTS/ PETITIONER AND RESPONDENTS 1 & 2: ---------------------------------------------------------------------------------- 1. THOMAS P.V., S/O.VARKEY, PUTHETTU HOUSE, ATHIYODI P.O., VIA. KOORACHUNDU, KOZHIKODE. 2. P.K.BALAN, S/O.KUMARAN, 4/168, P.O.CHANTHAKKUNNU, IRINJALAKUDA,THRISSUR. 3. SHAJI MATHEW, S/O.MATHEW PONATHIL HOUSE, MANGAVU P.O., KOZHIKODE. R1 BY ADV. SMT.K.V.RESHMI. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.A.C.A. NO.577/2007-G: ORDER ON I.A. NO. 811/2007 IN M.A.C.A. NO. 577/2007-G CLOSED 05/10/2009. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.577 OF 2007 ............................................. Dated this the 5th day of October, 2009 J U D G M E N T Notice to the driver is dispensed with as he had chosen to remain ex-parte before the Tribunal and R2 has not entered appearance in spite of notice in the delay petition. 2. This is an appeal preferred against the award of the Claims Tribunal, Kozhikode in OP(MV)No.956/1999. The insurance company is the appellant. The short point that arises for determination is whether the claimant, who was a passenger in a private jeep, is covered by the policy. The Tribunal interestingly found that since he was not a passenger in a private car, the insurance company is liable to pay. Whether it is a private car or a private jeep the question that has to be considered is whether the policy covers the risk of the person. After the elaborated judgments in [New India Assurance Co.Ltd. V. Asha Rani (2003(1)KLT 165(SC)] and in [United India Insurance Co.Ltd v. Tilak Singh (2006 (2) KLT 884(SC)] the status of : 2 : M.A.C.A.NO.577 OF 2007 a passenger in a private vehicle for which only an act only policy is issued which does not cover the risk of a third party and it has been held that the passenger in a private vehicle is not a third party and his status is that of a gratuitous passenger not covered by the policy. So, applying the dictum in Tilak Singh's case it has to be held that the claimant is not covered by the insurance policy. 3. I had perused the policy which is made available before me by the learned counsel for the insurance company. It only covers the risk of a third party, the driver and unlimited coverage for third party damage. No additional premium is paid towards the liability of a passenger in the vehicle. Therefore, the award passed by the Tribunal is modified. The claimant is entitled to realise the amount from respondents 1 and 2 in the claim petition jointly and severally and further the insurance company is totally exonerated from the liability. If the insurance company has deposited any amount, it has to be reimbursed to the insurance company on appropriate application. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 3 : M.A.C.A.NO.577 OF 2007 : 4 : M.A.C.A.NO.577 OF 2007