IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 MACA.No. 1404 of 2007 ----------------------- (OPMV.329/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE) APPELLANT/PETITIONER: --------------------------- MUHAMMED SHAFI E.B, S/O BASHEER, AGE 26 YEARS, EANTHUNKAL HOUSE, KUTTIKKATTUR POST, KOZHIKODE. BY ADV. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN RESPONDENTS/ RESPONDENTS -------------------------- 1. SHANAVAS, S/O ASSAINKUTTY, AGE 26 YEARS, VELUTHEDATH HOUSE, KODUVALLY POST, KOZHIKODE. 2. MUHAMMED RAFI, S/O BASHEER, AGED 31 YEARS, EANTHUNKAL HOUSE, KUTTIKKATTUR POST, KOZHIKODE. 3. THE UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, VELIMANNA BUILDING, THAMARASSERY, KOZHIKODE. R3 BY ADV. SRI.SANDESH RAJA K. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ............................................................................... M.A.C.A.No. 1404 OF 2007 ......................................................................... Dated this the 13th November, 2009 J U D G M E N T P.R. Raman, J: Appellant is the claimant before the M.A.C.T. When he was travelling as a pillion rider in the motor cycle bearing Registration No.KL-11 J/1254 through Kunnamangalam-- Mukkom public road, the vehicle capsized after hitting a person and as a result of which, the appellant was thrown out from the Motor Cycle and he sustained serious injuries . The appellant claimed an amount of Rs. Two lakhs as compensation under Section 166 of the M.V. Act. 2. Respondent No.1 is one Shanavas and Respondent No.2 is Muhammed Rafi. The third respondent (United India M.A.C.A.No. 1404 OF 2007 2 Insurance Co. Ltd.) is impleaded as insurer of the vehicle . Respondent Nos. 1 and 2 did not contest the matter . Insurance coverage was admitted as against the motor cycle in question. But the insured was one Shukkur and he was not made a party in the Claim Petition. 3. The third respondent disputed the liability to indemnify the first respondent. Negligence aspect is disputed as also the quantum. The petitioner did not mount the box to give any evidence. Exts. A1 and A2 and Ext. B1 were produced and marked. Ext.A1 is the copy of FIR in Crime No. 1443/2000. Negligence was attributed to the part of Muhammed Rafi. Respondent No.3 contended that the privity of contract was with one Shukuur Therefore, the third respondent was not liable to indemnify, even if there was any negligence on the part of the second respondent, since there was no privity of contract between the first and third respondents. Further, the appellant was a pillion rider and it is not shown that the policy covers the pillion rider by paying additional premium. In these circumstances, the Tribunal M.A.C.A.No. 1404 OF 2007 3 found that no compensation is payable. Accordingly, the claim petition was dismissed. 4. The learned Counsel for the appellant contended that Ext. B1 is not a limited policy and that in the written statement, the third respondent did not have any specific case that it is an 'Act' policy. We have considered the said submission. There is a clear finding by the Court below that there is no wider coverage as per Ext.B1 . Further, the first respondent is not the insured person. Therefore, the question of making the Insurance Company liable, does not arise. 5. However, the Court below did not consider the fact as to whether the second respondent, who was the rider of the motor cycle was negligent or not and whether any compensation could be awarded against him. Merely because the appellant was a pillion rider and in the absence of wider policy, the Insurance Company may not be liable to indemnify; but, if the rider of the vehicle was negligent and being a motor accident, a case could have been made out as against the second respondent. Therefore, the Counsel of the appellant was asked whether the M.A.C.A.No. 1404 OF 2007 4 matter should be remanded for consideration as to whether the second respondent could be made liable. It is admitted that the second respondent is none other than the brother of the appellant/claimant and he does not want to proceed against him. In that view of the matter, we do not find any merit and the Appeal is dismissed. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk