IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 MACA.No. 30 of 2009() -------------------------------- OPMV.3385/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): (PETITIONER IN OP. (MV) 3385/01) ------------------------ SALAM.P.A., 30 YEARS, S/O.ABDUL KHADER, NEDUMBILLY HOUSE, VENNALA PO., NEAR VADAKKANATH JUMA MASJID,,KOCHI-28. BY ADVS.MR.V.K.GOPALAKRISHNA PILLAI MR.GOPAKUMAR G. (ALUVA) RESPONDENT(S): (RESPONDENT NO.3 IN OP. (MV) 3385/01) ----------------------- NATIONAL INSURANCE CO.LTD., P.B.NO.89, IIND FLOOR, AMBIKA ARCADE, M.G.ROAD, THRISSUR-680001. R1 BY ADV. MR.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.30 OF 2009 ............................................. Dated this the 17th day of September, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Ernakulam in OP(MV)No.3385/2001. The claimant sustained injuries in a road accident and he has been awarded a compensation of Rs.40,000/=. The insurance company was exonerated from the liability on the ground that no evidence was adduced to show that risk is covered by the policy conditions. 2. I find that the Tribunal has wrongly cast burden when the insurance company claims exoneration of the liability. It was the responsibility of the insurance company to produce the documents. It is submitted that the policy is a comprehensive policy. Comprehensive policies up to 2001 and subsequent to 2001 had been considered by this Court in two Division Bench rulings. In New India Assurance Co.Ltd.v. Hydrose (2008 (3) KLT 778), this Court held that when there is a condition like Section II()1 therein whereby the insurance company undertakes to cover the risk of a M.A.C.A.NO.30 OF 2009 person carried in a motor cycle other than for hire or reward is also covered by the policy. Subsequent to 2001 there was a contention that there is a stipulation in the policy that it will be of subject to the liability under the provisions of the Motor Vehicle Act. In the decision reported in Mathew v. Shaji Mathew (2009 (3) KLT 813), this Court considered the impact of that clause and held that mere incorporation of such a clause cannot enable the insurance company to get exonerate from the liability and the principle laid down in Hydrose's case has to be followed. But unfortunately in this case, the policy conditions are not before me. Neither the counsel for the claimant nor the insurance company is able to give me a copy to interpret the same. Therefore, it has to be stated that the matter requires reconsideration for determination of that question. Therefore, the award so far as it relates to the liability of the insurance company is set aside and the matter is remitted back to the Tribunal for consideration of the same. Both the parties are permitted to adduce both documentary and oral evidence in support of their respective contentions and thereafter the Tribunal is M.A.C.A.NO.30 OF 2009 directed to dispose of the matter in accordance with law. The parties are directed to appear before the Tribunal on 11.11.2009. M.N.KRISHNAN, JUDGE cl