IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 MACA.No. 1193 of 2008() ----------------------- OPMV.520/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT:3RD RESPONDENT: ------------------------------------------------- THE ORIENTAL INSURANCE COMPANY LTD. ALUVA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.P.JACOB MATHEW RESPONDENTS: PETITIONER AND RESPONDENTS 1 & 2: -------------------------------------------------------------------------------------- 1. JOSEPH N.V., S/O.VARKEY, NELKKARA HOUSE, ALANGAD, NORTH PARAVUR TALUK. 2. REETHA DAVID, W/O. DAVID, KARIYATTI HOUSE,MAKAYAMPEEDIKA, ALANGAD P.O., NORTH PARAVUR TALUK. 3. VIJU,S/O.DAVID, DO..DO.. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== MACA No.1193 OF 2008 ===================== Dated this the 18th day of August 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, North Paravur in O.P.(MV)No.520 of 2003. By the said award, the Tribunal awarded him a compensation of Rs.20,650/- and found that being a pillion rider and only an Act only policy, the insurance company is entitled to get reimbursement of the amount. It is challenging that incorporation, the appeal is preferred. 2. The Tribunal in paragraph 7 of the award would state that there is no coverage for a pillion rider as it is only an Act only policy. Now it is well settled that a person travelling as a pillion rider in a scooter is a gratuitous passenger and therefore neither the gratuitous passenger nor a pillion rider is covered under the Act only policy. So the insurance policy issued by the company does not take in those persons. It is also a settled proposition that the gratuitous passenger or a pillion rider is not a 3rd party. The dictum laid down in Swaran Singh's case(2004(1) KLT 781) can be extended only when the person affected is a third party and when there is breach of MACA 1193/2008 -:2:- policy condition, the insurance company has to pay the amount and get it reimbursed. But, this is a case where he is not a 3rd party and not covered by the contract and therefore one cannot affix the liability on the insurance company. So the contention raised by the learned counsel for the insurance company has to be accepted in toto and the insurance company is to be exonerated from the liability. Therefore the award passed by the Tribunal is modified whereby the insurance company is exonerated from the liability and respondents 1 and 2 in the claim petition are made jointly and severally liable for the claim amount. The amount deposited by the insurance company shall be refunded to it and in case if it is withdrawn by the claimant, to that extent, the insurance company can realise that amount from respondents 1 and 2. MACA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-