IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 MACA.No. 1359 of 2008(G) -------------------------------- OPMV.591/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL,N. PARAVUR APPELLANT(S): -------------- NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, N.PARAVUR, REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS STREET, PADMA JUNCTION, KOCHI 682 035. BY ADV. SRI.LAL GEORGE RESPONDENT(S): PETITIONER & 1ST RESPONDENT IN OPMV: ------------------------------------------------------------------------ 1. ANILKUMAR.K.G., S/O.GANGADHARA MENON, GEETHA BHAVAN, NEAR N.S.S.KARAYOGAM, KAITHARAM, NORTH PARAVUR. 2. V.K.RADHAKRISHNAN, S/O.KRISHNANKUTTY, VAIKYATHAMKUTTU HOUSE, WEST OF KAITHARAM HIGH ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) FOR R1 ADV. MATHEWS V. JACOB. ADV. N.T. NANDAKUMARAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1359 OF 2008 = = = = = = = = = = = = = = = Dated this the 18th day of December, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, North Paravur in O.P.(MV)591/03. The claimant sustained injuries in a road accident and he has been awarded a compensation of Rs.41,500/-. The insurance company has challenged the award regarding its liability to pay the amount on the ground that the policy does not cover the case of a pillion rider. The Tribunal in paragraph 7 of the award has observed that Ext.B1 is an Act only policy with a package. I think such a usage is not proper for the reason there is lot of difference between an Act only policy and a package policy and Act only policy means the policy covers only the risk coverage under the statute whereas package policy has wider coverage. It depends upon the terms and conditions of the policy. It may take in or may not take in the risk of pillion rider and all depends upon the terms and conditions of the policy. So what are the terms and M.A.C.A. 1359 OF 2008 -:2:- conditions of the policy and whether the terms and conditions of the policy will cover the risk of a pillion rider in the light of the decision reported in New India Assurance Co. Ltd. v. Hydrose [2008 (3) KHC 522] etc. are all matters which require consideration. Whether the additional word used in the conditions of policy necessary to meet the requirements of the M.V.Act is also a question to be considered in order to find out whether it covers some other risk than what is required under the statute. Unfortunately, none of these aspects had been placed before the Tribunal and the terms and conditions of the policy has not been produced. When it is so the matter requires reconsideration. If the Tribunal finds that the policy does not cover the risk of a pillion rider then it has to be held that the status of the person will be that of a gratuitous passenger and he is not covered by the policy. Further the Apex Court has made it very clear that a pillion rider is not a third party. So if it is found that Ext.B1 policy does not cover the risk of a pillion rider by virtue of the terms and conditions of the policy, then M.A.C.A. 1359 OF 2008 -:3:- the insurance company is totally entitled to be exonerated from the liability. But if the condition is otherwise then it cannot escape from the liability as well. So these points can be decided by the Tribunal when these materials are placed and evidence is adduced in support of their respective contentions. Therefore the award under challenge is set aside so far as it relates to the liability is concerned and the Tribunal is directed to permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 21.1.09 and it is further directed that notice to be taken to the owner of the vehicle from the Tribunal by the insurance company so that he can also be heard before final disposal of the matter. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-