IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 MACA.No. 1451 of 2008() ----------------------------------- OPMV.1109/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR .................... APPELLANT/2ND RESPONDENT ---------------------------------------------- UNITED INDIA INSURANCE COMPANY LIMITED, ALUVA, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11. BY ADV. MR.P.JACOB MATHEW RESPONDENTS/ PETITIONER AND IST RESPONDENT --------------------------------------------------------------------------- 1. SUNIL DUTH, S/O.SATHYAN, MANAPARAMBIL HOUSE, MANAPPILLY, AYYAMPILLY P.O., ERNAKULAM DISTRICT. 2. PRASAD, S/O.DIVAKARAN, KUNNAPPILLY HOUSE, CHERAI P.O. R1 BY ADV. MR.SHIJU VARGHEESE, MR.PRAMOJ ABRAHAM , MR.RENDEEP PREM, SMT.A.K.RANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J ===================== MACA No.1451 OF 2008 ===================== Dated this the 23rd day of September 2009 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, N.Paravur in O.P.(MV)No.1109 of 2003. The Tribunal awarded a compensation of Rs.39,950/- and directed the insurance company to pay the amount and get it reimbursed from the owner. The Tribunal took the view that though the policy does not cover the risk, the insurance company has to pay the amount and recover it from the owner of the vehicle. It is only that part of the finding that is under challenge. 2. The question whether a comprehensive policy covers the person is not a subject matter for determination in this case and therefore this Court cannot go into that question. But the finding of the Tribunal after holding that there is nothing to show that the policy covers the risk of a person and then directing the insurance company to pay the amount is totally against law. Right from Swaran Singh's case(2004(1) KLT 781(SC), the view taken is that when there is a valid policy covering the risk but there is a breach of policy conditions, then the courts took the view that the 3rd party need not MACA 1451/2008 -:2:- suffer for a breach of the policy conditions and therefore directed the insurance company to pay the amount and recover from the person, who has committed the breach of the policy conditions. But, in this case the finding is that there is nothing to show the coverage of a pillion rider under the policy. Or, in other words, the policy does not cover the risk of a pillion rider. When it is so, a person who is not liable cannot be fastened with the liability to pay and recover. Therefore the finding of the Tribunal requires interference and it is set aside. It is held that the insurance company has no liability to pay the amount in the light of the finding of the Tribunal and therefore it need not pay the amount and recover it from the owner. The liability is on the first respondent alone. Therefore the award is modified and the insurance company is exonerated from the liability and the claimant is directed to recover the amount from the first respondent who is liable for the same. If there is amount in deposit made by the insurance company let it be reimbursed to them on appropriate application. MACA is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/- MACA 1451/2008 -:3:-