IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 MACA.No. 528 of 2007() ---------------------- OPMV.418/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR .................... APPELLANT/3RD RESPONDENT: -------------------------------------------------- THE ORIENTAL INSURANCE CO. LTD., METRO PALACE, GROUND FLOOR, OPP. NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS ADMINISTRATIVE OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 2: ----------------------------------------------------------------------------------- 1. T.K.PURUSHOTHAMAN, S/O. KANNAN, THURUTHUMMAL HOUSE, LAKSHAMVEEDU COLONY, MALIPURAM P.O., KOCHI TALUK, ERNAKULAM DISTRICT. 2. MOHAMMED, S/O. ABDUL KHADER, CHATHANATTU HOUSE, VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. 3. BINISH KUMAR, S/O. VIJAYAN, MADATHIPARAMBIL HOUSE, MALIPURAM P.O., VALAPPU, KOCHI TALUK, ERNAKULAM DISTRICT. R1 BY ADVS. SRI.G.BALAMURALEEDHARAN (PARAVUR), SRI.MATHEWS V.JACOB (PARAVUR), SRI.N.T.NANDAKUMAR (PARAVUR). R2 BY ADVS.SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.744/2007 IN MACA NO.528/2007 DISMISSED 09/06/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.528 OF 2007 ............................................. Dated this the 9th day of June, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, North Paravur in OP(MV)No.418/2002. The claimant, who sustained injuries in a road accident, has been awarded a compensation of Rs.28,200/= with 7% interest. The 3rd respondent insurance company was directed to deposit the amount and get it recovered from respondents 1 and 2 jointly and severally. It is against that decision, the insurance company has come up in appeal. 2. The short point that arises for determination is whether the insurance company can be directed to pay any amount at all in the light of the fact that the vehicle involved in the accident was covered by only an Act only policy. I am afraid that the Tribunal had given an erroneous finding directing the insurance company to pay and recover the amount from the owner and driver. The direction to pay and recover arises in cases where there is a valid insurance policy covering the risk of the person and there is a breach : 2 : M.A.C.A.NO.528 OF 2007 committed by the owner regarding the conditions of the policy or in other words the right to recovery is granted only on breach of conditions of the policy. So far as the present policy is concerned, admittedly it is an Act only policy. By virtue of the decision of the Supreme Court in United India Insurance Co. Ltd. v. Tilak Singh (2006 (2) KLT 884), an Act only policy does not cover the risk of a pillion rider. The Apex Court had held that any person mentioned will not take in a pillion rider and until and unless additional premium is paid to cover the risk of a pillion rider, the insurance policy will not cover that risk. Therefore from the materials, it can be held that the policy does not cover the risk of a pillion rider. When it is so, the insurance company cannot be saddled with the liability at all. When it cannot be saddled with the liability, it cannot be directed to pay and recover under the provisions of law. 3. Therefore the award under challenge is modified and the insurance company is totally exonerated from the liability and the claimant is given the liberty to proceed against respondents 1 and 2 in the claim petition jointly : 3 : M.A.C.A.NO.528 OF 2007 and severally for realisation of the amount. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : M.A.C.A.NO.528 OF 2007