IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 MACA.No. 231 of 2007() ---------------------- OPMV.658/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT ---------------- THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, P.B. NO.25, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, NORTH PARAVOOR, REPRESENTED BY ITS MANAGER, NATIONAL INSURANCE COMPANY LIMITED, MOTOR THIRD PARTY CLAIM SECTION, AJAY VIHAR, M.G. ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 2 IN OP(MV)658/2000 ------------------- 1. LALAN, S/O. CHENAMAKKAL KRISHNAN, VADAMA VILLAGE, MALA, NEITHUKUDY DESOM, MUKUNDAPURAM TALUK. 2. K.A.VARGHESE, S/O. KALLOOR ANTHAPPAN, MANNAM P.O., NORTH PARAVOOR. 3. VAMANAN, S/O. MUNDATHUMMEL KRISHNANKUTTY POYYA VILLAGE, POOPPATHY DESOM. BY ADV. SRI.T.A.UNNIKRISHNAN FOR R1,3 SRI.P.P.BIJU FOR R1,3 SRI.M.M.MATHEW (MANNOOR ETTONNIL) FOR R.2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.A.C.A. No.231 of 2007 ------------------------------- Dated this the 23rd December, 2009 J U D G M E N T Ramachandra Menon, J. Sustainability of the Award passed by the Tribunal mulcting the liability upon the Insurer of the scooter, on which the appellant was riding, based on an 'Act only policy', is the subject matter of challenge in this appeal, preferred by the Insurer. 2. The first respondent/claimant was travelling as a pillion rider on the scooter bearing Registration No.KL-7/D 6933 on 16.10.1999. While so, allegedly because of the rash and negligent riding of the scooter, the vehicle over turned causing serious injuries to the pillion rider, which led to the claim petition before the Tribunal. The second respondent before the Tribunal who was the rider of the scooter did not turn up, and hence was set ex parte. The owner of the vehicle though entered M.A.C.A.No.231 of 2007 2 appearance did not file any written statement. It was specifically contended from the part of the Insurance Company that the policy issued was an 'Act only policy', where no coverage was there in respect of the pillion rider of the vehicle. A copy of the policy was also produced as Ext.B1. The claimant, besides examining himself as PW.1 and the Doctor who issued the disability certificate as PW.2, produced and marked documents such as Exts.A1 to A10 in support of his contentions. After evaluating the facts and figures, the Tribunal arrived at a finding that the accident occurred because of the negligence on the part of the rider of the scooter and hence that the claim amount was very much entitled to be compensated. 3. Coming to the fixation of quantum, the Tribunal, based on the pleadings and the materials on record, awarded amounts under different heads granting a total compensation of Rs.72,151/- which was ordered to be paid with interest at the rate of 6% per annum, from the date of filing the petition. Taking note of the contentions raised by the Insurance Company that the policy issued was an 'Act only policy' and that there was M.A.C.A.No.231 of 2007 3 no coverage thereunder in respect of the pillion rider, it was observed by the Tribunal in paragraph 9 that an 'Act only policy' will not cover the injury caused to the pillion rider. But on perusal of Ext.B1 policy, according to the Tribunal, the policy very much covered the pillion rider as well, and accordingly, the liability was shifted to the shoulders of the Insurer, which is the subject matter of challenge in this appeal. 4. The learned counsel appearing for the appellant submits that the Law stands well settled in view of the decision rendered by the Apex Court in United India Insurance Company Ltd. v. Tilak Singh and others (2006 (4) SCC 404), holding that there is no liability for the Insurer to indemnify the insured in respect of a passenger travelling in a private vehicle, including the pillion rider of a two wheeler. In the instant case, the fact that Ext.B1 policy issued by the respondent Insurer was an 'Act only policy' is not disputed from the part of the claimant or the insured. The insured even did not choose to file any written statement to rebut the above specific pleading. It appears that the finding has been arrived at by the Tribunal, M.A.C.A.No.231 of 2007 4 fixing the liability upon the appellant, presumably for the reason that a sum of Rs.75/- in respect of two persons travelling in the vehicle and also a further sum of Rs.50/- in respect of the unlimited coverage towards TPPD (Third Party Property Damage) was collected by the Insurer. A true copy of the policy was also placed for consideration before this Court by the learned counsel for the appellant, which clearly revealed that no premium was collected in respect of the 'own damage' to the vehicle, so as to make it a 'Comprehensive' or a 'Package Policy'. 5. With regard to the issue whether the pillion rider will be covered under a policy, in the case of 'Package policies', it has been brought to the notice of this Court that as per a recent Circular dated 16.11.2009, issued by the Insurance Regulatory and Development Authority, it has been clarified that all the Package policies will automatically cover the passengers in a private vehicle including the pillion rider on a two wheeler. Now the question to be considered is whether Ext.B1 is a 'Package policy' or not. Going through the contents of the said policy, as rightly pointed out by the learned counsel for the appellant, M.A.C.A.No.231 of 2007 5 absolutely no premium has been collected in respect of the 'own damage' to the vehicle, and as such, it cannot be categorised as a 'Package policy'. It still remains to be an 'Act only policy', with some added benefits, on paying additional premium in respect of the specified instances. 6. In the above facts and circumstances, we find that the fixation of liability by the Tribunal directing the Insurer to satisfy the Award, indemnifying the owner is not correct and we set aside the same. We make it clear that the liability has be satisfied by the owner as well as the rider concerned, and the Insurer will stand exonerated in all respects. The appeal stands allowed as above. No cost. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.