IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 MACA.No. 770 of 2007() --------------------------------- OPMV.442/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANTS/PETITIONERS 1 & 2 ------------------------------------------------ 1. MINI, W/O.LATE FRANCIS THOMAS, ANPATHIRANDIL HOUSE, KILIROOR (N) P.O., KOTTAYAM, REP. BY THE DULY CONSTITUTED POWER OF ATTORNEY HOLDER, K.J.JOSE, S/O.OUSEPH JOHN, KAITHAPPADOM, VILLOONNI P.O., KOTTAYAM. 2. FEBIN FRANCIS (MINOR), S/O.LATE FRANCIS THOMAS, REPRESENTED BY THE NEXT FRIEND AND LEGAL GUARDIAN, MOTHER APPELLANT NO.1, WHO IS IN TURN REPRESENTED BY THE POWER OF ATTORNEY HOLDER K.J.JOSE,DO. DO. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS/RESPONDENTS & 3RD PETITIONER -------------------------------------------------------------------------- 1. THOMAS MATHEW, THATHRAMVELIL HOUSE, KUMARANALLOOR P.O. KOTTAYAM. 2. ANEESH GEORGE, PALAKKUZHA, PADAMUGHAM P.O., IDUKKI. 3. THE UNITED INDIA INSURANCE CO. LTD., KOTTAYAM. 4. ULAHANNAN THOMAS, ANPATHIRANDIL HOUSE, KILIROOR (N) P.O., KOTTAYAM. ADV. SRI.MATHEWS JACOB (SR.) FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B. Koshy & Thomas P.Joseph, JJ. -------------------------------------- M.A.C.A. No.770 of 2007 --------------------------------------- Dated this the 20th day of November, 2008 Judgment Koshy,J. Husband of the first appellant sustained fatal injuries while he was travelling as a pillion rider in a motor cycle bearing registration No.KL/5P 9222. The Tribunal found that the accident occurred due to the negligence of the second respondent rider of the motor cycle owned by the first respondent and insured by the third respondent insurance company. Since he was a pillion rider, it was held that the insurance company is not liable to pay compensation. Ext.B1 is the policy certificate. The policy is not an 'Act policy'. In United India Insurance Co. Ltd., Shimla v. Tilak Singh and others (AIR 2006 SC 1576), it was held that in an 'Act policy', pillion riders or gratuitous passengers in private vehicles are not covered. Insurance in this case is a two-wheeler package policy as per Ext.B1. Section II (1) of the policy conditions reads as follows: "1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the motor M.A.C.A.No. 770/2007 2 cycle against all sums which the insured shall become legally liable to pay in respect of: i) death or bodily injury to any person including person conveyed in or on the motor cycle provided such person is not carried for hire or reward; ii) damage to property other than property belonging to the insured or held in trust by or in the custody or control of the insured. PROVIDED ALWAYS that the Company shall not be liable in respect of death, injury or damage caused or arising beyond the limits of any carriageway or thoroughfare in connection with the bringing of the load to the Motor Cycle for loading thereon or the taking away of the load from the Motor Cycle after unloading therefrom." Section II (1) clearly include the risk of a person conveyed in or on the motor cycle provided such person is not carried for hire or reward. Therefore, pillion rider is covered on the basis of the terms of the policy. It is argued that it is subject to the limit as laid down in the schedule. No limit is mentioned in the schedule with regard to the risk of liability of pillion rider. 2. In this connection, we refer to the Constitution Bench decision of the Supreme Court in New India Assurance Co. Ltd. v. C.M.Jaya and others (AIR 2002 SC 651) holding that conditions of the policy will bind on the parties. In the decision reported in Amrit Lal M.A.C.A.No. 770/2007 3 Sood and Another v. Kaushalya Devi Thapar and others ((1998) 3 SCC 744) also the Hon'ble Supreme Court expressed the same view. In view of the conditions of the policy, we are of the view that insurance company cannot deny the liability. Therefore, the entire amount awarded by the Tribunal should be deposited by the third respondent insurance company instead of first respondent as owner's liability has to be indemnified by the insurance company. Appeal is allowed. J.B.Koshy Judge Thomas P. Joseph Judge vaa M.A.C.A.No. 770/2007 4 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- M.A.C.A.No.770/2007 ------------------------------------- Judgment Date:20th November,2008