IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 MACA.No. 588 of 2009() --------------------------------- OPMV.1198/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT(S): 2ND RESPONDENT IN OP(MV)NO.1198/2000 ---------------------- NATIONAL INSURANCE COMPANY LIMITED, PATHANAMTHITTA, REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS STREET, PADMA JUNCTION, KOCHI-682 035. BY ADV. MR.LAL GEORGE RESPONDENT(S): CLAIMANT AND IST RESPONDENT -------------------------- 1. V.M.RADHAKRISHNAN NAIR, AGED 28 YEARS, VETTIYATHU MELETHIL VEEDU, PARAKKARA P.O., THATTAYIL, PATHANAMTHITTA. 2. M.BALAKRISHNAN, MUNDICHANGOTHUNDI VEEDU, KUDAMUKKU, MAMMOODU (P.O.), PATHANANTHITTA. R1 BY ADVS.MR. K.SHAJ, MR.SAJJU.S THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDEER ON IA. NOS. 728 /09 & 729/09 IN MACA NO.588/2009 CLOSED 21.10.2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.588 OF 2009 ............................................. Dated this the 21st day of October, 2009 J U D G M E N T This is an appeal preferred against the order of the Claims Tribunal, Pathanamthitta in OP(MV)No.1198/2000. It was an application filed under Section 163 A of the Motor Vehicles Act and the Tribunal has awarded a compensation of Rs.78,772/= and directed the insurance company to pay the amount. The insurance company had raised a contention that since the person involved is a pillion rider to a two wheeler, the policy does not cover the risk of the person and therefore, the insurance company is liable to be exonerated from the liability. What the Tribunal did was that in view of the not withstanding provision under Section 163 A, it came to the conclusion that the insurance company is barred from raising such a contention in a Section 163 A case. In support of the same, it had relied upon two decisions; a Full Bench decision of this Court reported in National Insurance Co. Ltd. v. Malathi C. Salian(2003 ACJ 2033) and the decision of the Gujarat High : 2 : M.A.C.A.NO.588 OF 2009 Court in New India Assurance Co.Ltd. v. Suguna (2008 (3) KLT SN 50 Page 50). So far as the Full Bench decision of this Court is concerned, it does not deal with that proposition but deals with the question that in a case under Section 163 A, even if the claimant was responsible for the accident, he is not precluded from filing an application under Section 163 A. In the Gujarat High Court decision, the Hon'ble Judges of the said court held that since the word notwithstanding is there, under Section 163 A the insurance company is precluded from raising the contention of non liability. I am afraid that the said decision runs contra to the decision of the Hon'ble Apex Court reported in National Insurance Co.Ltd v. Swran Singh(2004(1)KLT 781).While summarizing the whole things, in Para 102 (ii) the Supreme Court held that the “ insurer is entitled to raise the defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act'. So, the Apex Court had held that the insurance company is entitled to raise defence in a Section 163 A proceedings. Therefore : 3 : M.A.C.A.NO.588 OF 2009 the the approach of the Tribunal to the contra is against law and it requires interference. 2. Now a larger question may arise whether by virtue of the terms and conditions of the policy, a pillion rider is covered or not in the light of the two decisions of this Court reported in New India Assurance Co.Ltd. V. Hydrose (2008 (3) KLT 778) and in Matherw v. Shaji Mathew (2009 (3) KLT 8130. For the said purpose, the Tribunal has to consider the terms and conditions of the policy and arrive at a decision. So, the matter requires reconsideration at the hands of the Tribunal. Therefore, the award under challenge, so far as it relates to the inter se liability between the insurance company and the owner, is set aside and the matter is remitted back to the Tribunal with a direction to consider whether the policy will cover the risk of a pillion rider, who travelled in the vehicle, in accordance with the latest decisions on this point. Needless to say that the parties will be permitted to adduce both documentary as well as oral evidence in support of their respective contentions. The : 4 : M.A.C.A.NO.588 OF 2009 parties are directed to appear before the Tribunal on 1.12.2009 and the insurance company is directed to take steps to issue notice to the owner, so that he can be heard before the matter is finally disposed of. M.N.KRISHNAN, JUDGE cl